USA v. Edward M. Walsh, Jr.

Case 2:15-cr-00091-ADS Document 60 Filed 03/08/16 Page 1 of 27 PageID #: 266
NMA:CMM/RAT
F. # 2014R01331
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
UNITED STATES OF AMERICA
Docket No. 15CR-091 (ADS)
- against EDWARD M. WALSH, JR.,

Defendant.
X
THE GOVERNMENTS MOTION IN LIMINE REQUESTING

THE ADMISSION OF CERTAIN EVIDENCE AND
THE PRECLUSION OF CERTAIN EVIDENCE AT TRIAL
ROBERT L. CAPERS
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
Catherine M. Mirabile
Raymond A. Tierney
Assistant U.S. Attorneys
(Of Counsel)
PRELIMINARY STATEMENT
The government respectfully submits this motion in limine requesting the
admission of evidence in the above-captioned trial, scheduled to commence on March 15,
2016. This evidence consists of: (1) background evidence about the investigation into the
charged crimes by the Suffolk County Sheriffs Office (Sheriffs Office) that is necessary
to prevent the jury from being confused or misled about the actions and motivations of the
reporting official and government witness, Sheriff Vincent DeMarco, and (2) testimony
regarding other bad acts committed by and involving the defendant which are admissible
pursuant to Rule 404(b) as evidence of the defendant's opportunity and intent, to prove lack
of mistake, and to refute the defendants defense to the charges.
The government also respectfully moves to preclude the defendant from
mentioning in his opening statement, cross-examining government witnesses, or introducing
evidence in his case-in-chief (should the defendant elect to present a defense), other bad acts
allegedly committed by other, unindicted Correction Officers and/or employees of the
Sheriffs Office.
THE CHARGES IN THE INDICTMENT
The defendant, a former Suffolk County Correction Officer, is charged in a
two-count Indictment with theft of funds, in violation of 18 U.S.C. 666(a)(1)(A), and wire
fraud, in violation of 18 U.S.C. 1343, for engaging in a fraudulent scheme whereby he
falsely represented to the Sheriffs Office that he had worked certain regular and overtime
hours, when, in fact, he did not and was instead, among other things, playing golf or
performing work on behalf of the Suffolk County Conservative Party (the Conservative
Party). In reliance on the defendants false representations, the Sheriffs Office paid him
wages for hours he did not work.
I.
The Governments Anticipated Evidence

A.
Overview
At trial, the government anticipates calling witness Sheriff DeMarco to testify
about the defendants duties and responsibilities as an employee of the Sheriffs Office. For
example, DeMarco is expected to testify that the defendant was DeMarcos subordinate and
that the defendant was expected to work a 7 hour workday and a 37 hour workweek.
DeMarco is also expected to testify that, with one or two exceptions, none of the defendants
duties and responsibilities required him to be outside the correctional facilities in Riverhead
or Yaphank, New York.
As discussed in more detail below, DeMarco is also expected to offer
testimony concerning his (DeMarcos) efforts to initiate a 2014 internal investigation of the
defendant for theft of funds and fraud related to the conduct charged in the case, and his
(DeMarcos) inability to find an audience for the case with the local state prosecutor because
of the influence and power yielded by the defendant. For example, DeMarco will testify that
he contacted Suffolk County District Attorney Thomas Spota to assist in the investigation,
but that Spota declined to participate in the investigation or prosecution of the defendant.
DeMarco will further testify that he, thereafter, sought assistance from Suffolk County
Attorney Dennis Brown, who, similarly, declined to investigate the allegations
administratively.
Further, DeMarco is expected to testify that his efforts to investigate the

defendant in 2014 related to the charged conduct was directly influenced and shaped by
his prior attempts to investigate the defendants conduct, certain of which are set forth below.
B.
2007, 2009 and 2010 Anonymous Complaints Made Against the Defendant
DeMarco is expected to testify that on or about November 16, 2007, October
30, 2009, and March 24, 2010, he received anonymous complaints alleging that the
defendant was engaged in political activity during work hours while employed by the
Sheriffs Office; Spota was an identified recipient on two of those complaints. Each of the
complaints alleged that the defendant engaged in political activity while at work and that the
defendant gave special favors to Conservative Party members, including promotions at the
Sheriffs Office. One complainant noted that she was speaking on behalf of many others
that are too frightened to speak up themselves and that [she herself is] also frightened but
ha[s] agreed to do this. See Anonymous Complaints attached hereto as Exhibits 1, 2 and 3,
respectively.
In response to both the 2007 and the 2009 complaints, contemporaneous with
the event, DeMarco will testify that he instructed Undersheriff John Meyerricks to advise the
defendant of the existence of the complaint, and to instruct the defendant to cease any and all
political activity while at work.
With respect to the 2010 complaint, DeMarco will testify that,
contemporaneous with the complaint, he had a conversation with Spota, at which time he
(DeMarco) asked Spota to speak with the defendant regarding the complaint. DeMarco will
testify that he asked Spota to speak with the defendant because he thought that Spota would
have more influence over the defendant because Spota was the Suffolk County District
Attorney. Spota agreed to speak with the defendant.
C.
2012 Correspondence Regarding Walshs Prior Arrest in Maryland

DeMarco is also expected to testify that in or about the winter/spring of 2012,
news agencies reported that the defendant had provided false and inaccurate information on
his application for employment with the Sheriffs Office. Specifically, the defendant was
arrested in December 1984 by the University of Maryland Police Department in College Park
and charged with a sexual offense in the fourth degree; the defendant pleaded guilty and was
sentenced to 12 months probation. In addition, in March 1989, the defendant was arrested
by the Nassau County Police Department and charged with criminal mischief in the third
degree; the defendant pleaded guilty to disorderly conduct. The news reports alleged that,
despite these arrests, the defendant did not disclose either arrest in his application for
employment with the Nassau County Police Department, and did not disclose his arrest in
Maryland in his application for employment with Suffolk County.
As a result of these reports, DeMarco was contacted by a number of
individuals, including a Suffolk County Legislator, who called for an investigation of the
Sheriffs Offices hiring of the defendant, which had occurred 20 years before. DeMarco
was concerned and tried to investigate the allegation by reviewing the defendants
application for employment, but he was unable to take personnel action. Thus, DeMarco
suggested to those concerned, including the Suffolk County Legislator, that the matter be
referred to the Suffolk County Civil Service Department or if he or she believed that the
defendant engaged in criminal activity, to the Suffolk County District Attorneys Office
(DAs Office).
4
As set forth below, the government does not seek to introduce the particulars
about the defendants 1984 arrest in Maryland or his 1989 arrest in Nassau County. Rather,
the government seeks to introduce evidence of the news reports that the defendant had
provided false and inaccurate information on his application for employment with the
Sheriffs Office and the requests for action to be taken by DeMarco, as well as DeMarcos
response to such requests.
D.
Defendants June 2012 Detention by the Suffolk County Police Department

DeMarco will also testify that on or about June 16, 2012, the defendant was
detained during a court-authorized Suffolk County Police Department (SCPD) raid of an

illegal gambling establishment. A report documenting this incident was prepared by a
member of the SCPD and the defendant was photographed inside of the gambling
establishment. A copy of the paperwork and photographs have been provided to the defense.
On the morning of June 17, 2012, DeMarco was notified of the incident by
Spota. According to DeMarco, Spota told DeMarco, in sum and substance, not to do
anything and that the DAs Office would take care of it and get back to DeMarco. The
SCPD Internal Affairs Bureau (SCPD IAB) also contacted the Sheriffs Office Internal
Affairs Unit to inform the Sheriffs Office that a Sheriffs Office employee had been
detained in the illegal gambling raid.
After the initial notifications, DeMarco repeatedly asked members of the
Sheriffs Office Internal Affairs Unit to follow up with the SCPD IAB, which provided
minimal paperwork and information related to the defendants detention and did not provide
a copy of the photograph of the defendant taken inside the gambling establishment during the
raid. DeMarco will further testify that telephone calls to the DAs Office regarding the
defendants June 2012 detention were not returned.
DeMarco will testify that after some time passed, Spota informed DeMarco
that the defendants conduct was not criminal and that it was not illegal to be a player at an
illegal gambling establishment. According to DeMarco, the DAs Office failed to assist the
Sheriffs Office in their internal investigation of the defendant, who was a correction officer
found present at an illegal gambling establishment, blatantly associating with felons.
E.
The Underlying Investigation of the Charged Conduct

DeMarco is also expected to testify that in February 2014, while he was out of
town, he received a call informing him that Gary Melius, a prominent Long Island
businessman and the owner of Oheka Castle, had been shot. DeMarco was also told, by
Meyerricks, that the defendant said that he (Walsh) had been with Melius the previous Friday
for a company shareholder meeting. When DeMarco asked Meyerricks why the defendant
would be present at such a meeting, Meyerricks responded that he did not know.
Three days later, on February 27, 2014, Newsday published an article
regarding, among other things, the shareholder meeting for Interceptor Ignition Interlocks.
The Newsday article quoted the defendant and reported the following:
Ed Walsh, Suffolk Conservative Party leader, said he attended
the shareholders meeting at the companys headquarters in
Shirley. He said he is not a shareholder but attended to provide
moral support to his friend Melius. I expected some drama,
but it didnt really give it, Walsh said. It was pretty blah,
pretty uneventful. In a later interview, Walsh confirmed that
new directors had been named at the meeting but that hed been
told not to say anything more.
See Newsday, Gary Melius Clashed with Businessman, Won Control of Firm, dated
February 27, 2014, attached as Exhibit 4.
Shortly thereafter, a Newsday staff writer contacted DeMarco, and requested a
copy of the defendants time and accrual sheet for the day of Interceptor Ignition Interlocks
shareholder meeting. At DeMarcos direction, Meyerricks informed the defendant that
Newsday had requested his time and accrual sheet for that particular day and asked the
defendant to confirm whether or not the time sheet was accurate. The defendant confirmed
to Meyerricks that his time and accrual sheet was accurate. In response to the request, the
Sheriffs Office then provided Newsday with a copy of the defendants time and accrual
sheet.
On March 6, 2014, a Newsday staff writer sent DeMarco a Freedom of
Information Law (FOIL) request for the defendants work schedule and time and accrual
sheet(s) for all of 2014.
In March 2014, the Sheriffs Office initiated surveillance of, among others, the
defendant and another Correction Officer, Steven Compitello. Both were being investigated
for theft of funds for claiming on time sheets hours that they did not work.
On April 9, 2014, DeMarco learned that Conservative Party paperwork and
correspondence were found in the trunk of the defendants Sheriffs Offices vehicle during a
routine inspection of the defendants vehicle while the vehicle was being serviced. Members
of the Sheriffs Office Internal Affairs Unit photographed the contents of the defendants
vehicle. DeMarco is expected to testify that the presence of Conservative Party paperwork in
an official vehicle was an issue because it is against the law for employees to use County
vehicles for political party purposes.
7
As noted above, DeMarco is expected to testify that, among others, both the
defendant and Correction Officer Steven Compitello were being investigated by the Sheriffs
Office for theft of funds for claiming on time sheets hours that they did not work. On April
24, 2014, the DAs Office arrested Compitello for grand larceny.
On May 1, 2014, Newsday published an article about the Sheriffs Offices
investigation into the defendants time and accrual records. See Newsday, Suffolk Sheriff
Probes Alleged . . . Time Bandits: Scrutiny of Conservative Party Chief A Correction
Lieutenant; Investigating if jail employees got paid while not working, dated May 1, 2014,
attached hereto as Exhibit 5.
That same day, May 1, 2014, Spota called DeMarco and left a voicemail
stating that he (Spota) saw the Newsday article and wanted to talk to DeMarco about the
defendant and Compitello. Later that evening, DeMarco spoke with Spota, and they agreed
to meet on May 7, 2014.
Sometime between May 1, 2014 and May 6, 2014, a Newsday staff writer
directed DeMarco to a golf website that contained publicly available information about the
defendants golfing activities, including dates that the defendant allegedly played golf at
various locations on Long Island. The Newsday staff writer questioned DeMarco about
whether he (DeMarco) knew if the defendant was golfing on those dates, and whether or not
he (Walsh) should have been at work.
On May 6, 2014, in anticipation of his May 7, 2014 meeting with Spota,
DeMarco printed a copy of the defendants golfing activities from the website.
On May 7, 2014, DeMarco met with Spota at the DAs Office. DeMarco
brought the following items with him to the meeting: (1) the defendants time and accrual
8
records; (2) the printout of the defendants golf activities from the website; (3) notes related
to the Sheriffs Offices surveillance of the defendant; and (4) a Conservative Party letter
retrieved from the trunk of the defendants Sheriffs Office vehicle. At this meeting, Spota
stated that if he (Spota) knew about the defendants time sheet problems he would not have
gone so hard on Compitello, implying that the DAs Office would not have charged
Compitello if they knew the defendant engaged in the same conduct. According to
DeMarco, Spota minimized all of DeMarcos concerns regarding the defendant, stating, in
sum and substance: that the surveillance evidence was not sufficient; that the Conservative
Party material in a Sheriffs Offices vehicle was not a big deal; and that the printout of the
defendants golfing activities did not contain a specific time linked to the defendants alleged
activities. DeMarco requested a subpoena for the defendants golf records. In response,
Spota stated I am not subpoenaing anything. DeMarco left the DAs Office without the
requested subpoenas for the defendants golf records, or any expectation that Spota would
investigate the allegations.
DeMarco will further testify that on or about May 14, 2014, he met with
Suffolk County Attorney Dennis Brown to request subpoenas for the defendants cell phone
and golf records as part of an administrative investigation. Brown indicated that he was
unsure if he could issue such subpoenas and stated that he wanted to speak with Spota.
Shortly thereafter, Brown denied DeMarcos request for subpoenas
DeMarco will testify that he eventually obtained the defendants cell phone
records, which indicated the following communication between the defendant and Spota:
DATE
April 22, 2014
April 22, 2014
April 22, 2014
April 22, 2014
April 22, 2014
April 28, 2014
April 28, 2014
April 28, 2014
May 14, 2014
May 28, 2014
June 4, 2014
June 4, 2014
June 4, 2014
June 5, 2014
June 11, 2014
TIME
1:04 p.m.
3:30 p.m.
3:35 p.m.
3:43 p.m.
3:44 p.m.
1:42 p.m.
1:56 p.m.
2:32 p.m.
8:14 p.m.
1:32 p.m.
4:12 p.m.
4:14 p.m.
4:30 p.m.
6:01 p.m.
2:32 p.m.
CALLER
Spota called Walsh
Spota called Walsh
Spota called Walsh
Walsh called Spota
Walsh called Spota
Spota called Walsh
Walsh called Spota
Spota called Walsh
Spota called Walsh
Spota called Walsh
Spota called Walsh
Spota called Walsh
Spota called Walsh
Spota called Walsh
Spota called Walsh
Notably, May 14, 2014 is the same day that DeMarco met with Suffolk
County Attorney Brown; this call was approximately 10 minutes long.
On July 23, 2014, DeMarco brought the results of his investigation to the
USAO EDNY.
F.
The Testimony of Sheriff Offices Internal Affairs Unit Supervisor

In addition to DeMarco, Correction Officer III Lieutenant Brian Baisley is
expected to testify. Baisley, the supervisor for the Sheriffs Offices Internal Affairs Unit is
expected to testify that, while giving the defendant certain administrative warnings related to
the charged conduct, the defendant stated, in sum and substance, if you think that the
agency across the river is going to do anything about this, youre wrong and that guy is not
going to do anything about this. Baisley will testify that the office across the river is the
DAs Office, which is located across the Peconic River from the Sheriffs Office. Baisley
will further testify that the guy the defendant was referring to is Spota.
10
II.
The Anticipated Defense Arguments

The government anticipates that, based upon recent subpoenas served by the
defendant and previous arguments made by the defense, the defendant will attempt to divert
the jurys attention and put DeMarco on trial. Indeed, in opposing the governments motion
to quash the defendants subpoena for DeMarcos personnel file, the defendant argued that
DeMarcos records and credibility or lack of credibility will be the critical questions for
the trial jury. See United States v. Walsh, 15-CR-91 (ADS) (Walsh), Docket Entry
(DE) 27 at 9 (emphasis in original). In seeking DeMarcos personnel file, the defendant
further argued that the requested documents may suggest bias or a motive on the part of
[DeMarco]. Id. at 11.
Further, the government anticipates that the defendant will argue, among other
things, that the underlying investigation and prosecution of the defendant was in retaliation
for the defendants alleged refusal to endorse DeMarco as a candidate for the U.S. Congress.
The defendant has repeatedly made this argument in the media. For example, in a January 7,
2015 Newsday article, defense counsel is quoted as follows:
Im surprised that the government would wade into ordinary
Conservative Party politics that has resulted from a political
disagreement between the sheriff and my client, Wexler said.
Wexler declined to say what the disagreement was between
Walsh and Suffolk County Sheriff Vincent DeMarco.
See Newsday, Walsh to Face Charge: Taking Pay, Not Working, dated January 7, 2015,
attached hereto as Exhibit 6. Approximately one year later, on February 19, 2016, Newsday
reported the following:
11
Wexler has said his clients legal problems began when he

clashed with Suffolk County Sheriff Vincent DeMarco, a fellow
Conservative Party member. DeMarco is Walshs boss in the
sheriffs department, while Walsh is above DeMarco in the
Conservative Party. Demarco went to federal authorities with
allegations against Walsh only after the Conservative Party
leader declined to back the sheriff in a run for Congress, Wexler
has said.
See Newsday, Edward Walsh, Facing Trial, Retires as Sheriffs Lieutenant, dated February
19, 2016, attached hereto as Exhibit 7.
12
ARGUMENT
POINT I
Evidence of Other Crimes or Acts Committed by The Defendant
Is Admissible as Direct Evidence of the Charged Crimes
And/or Pursuant to Rule 404(b)
I.
Applicable Law
A.
Admissibility of Other Acts as Direct Evidence

The Second Circuit has held that evidence of certain uncharged acts, including
uncharged criminal activity, is not considered other crimes evidence under Fed. R. Evid.
404(b) if it arose out of the same transaction or series of transactions as the charged offense,
if it is inextricably intertwined with evidence regarding the charged offense, or if it is
necessary to complete the story of the crime on trial. United States v. Carboni, 204 F.3d 39,
44 (2d Cir. 2000) (quoting United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997));
United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). See also Weinsteins Federal
Evidence, 404.20(b) (evidence of other wrongs is admissible without regard to Rule 404(b)
where those wrongs were necessary preliminaries to the crimes charged); Id. at
404.20(2)(b) (evidence of other acts is admitted if it contributes to an understanding of the
event in question, even if it reveals crimes other than those charged, because exclusion under
those circumstances would render the testimony incomplete and confusing).
Relevant evidence is not confined to that which directly establishes an
element of the crime. Gonzalez, 110 F.3d at 941. In this context, [t]o be relevant,
evidence need only tend to prove the governments case, and evidence that adds context and
dimension to the governments proof of the charges can have that tendency. Id.; see also
United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) ([E]vidence of other bad acts may be
13
admitted to provide the jury with the complete story of the crimes charged by demonstrating
the context of certain events relevant to the charged offense.). Evidence that provide[s]
background for the alleged events may be admitted to show the circumstances surrounding
the events or to furnish an explanation of the understanding or intent with which certain acts
were performed. United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991).
B.
Admissibility of Other Acts Evidence Pursuant to Rule 404(b)

Federal Rule of Evidence 404(b) provides that evidence of other crimes,
wrongs, or acts may be admissible as evidence of the defendants motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The
standards governing the admissibility of evidence under Rule 404(b) are well established:
First, the district court must determine if the evidence is offered
for a proper purpose, one other than to prove the defendants
bad character or criminal propensity. If the evidence is offered
for a proper purpose, the district court must next determine if
the evidence is relevant to an issue in the case, and, if relevant,
whether its probative value is substantially outweighed by the
danger of unfair prejudice [pursuant to Rule 403]. Finally, upon
request, the district court must give an appropriate limiting
instruction to the jury.
United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (citation omitted); see also
Huddleston v. United States, 485 U.S. 681, 685 (1988) (holding that other acts evidence does
not need to be proven by a preponderance standard).
The Second Circuit has long adopted an inclusionary approach to the
admission of uncharged crime evidence, under which evidence of prior crimes, wrongs or
acts is admissible for any purpose other than to show a defendants criminal propensity.
United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006) (quoting Pitre, 960 F.2d at 111819 (emphasis added); see also Carboni, 204 F.3d at 44; United States v. Germosen, 139 F.3d
14
120, 127 (2d Cir. 1998). While the government must explain in detail the purposes for which
the evidence is sought to be admitted, the Second Circuit has emphasized that Rule 404(b) is
a rule of broad reach and liberal application. See United States v. Garcia, 291 F.3d 127, 136
(2d Cir. 2002) (citing Pitre, 960 F.2d at 1118). The Court has broad latitude in determining
whether to admit evidence pursuant to Rule 404(b), and its ruling will be reviewed only for
abuse of discretion. See United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994).
Applying this approach, the Second Circuit has routinely approved of the
admission of other crimes evidence which serves to: (1) provide context and background
helpful to the jurys understanding of the complete story of the charged crimes, see United
States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992), United States v. Lasanta, 978 F.2d
1300, 1307 (2d Cir. 1992) (testimony from government witness concerning his involvement
in drug transactions several years prior to commencement of charged conspiracy); (2) prove
a defendants intent to commit or motivation for a proscribed act, see United States v. Brand,
467 F.3d 179, 197 (2d Cir. 2006) (evidence that the defendant possessed child pornography
admissible as proof that he intended to engage in illicit sexual conduct with a minor); United
States v. Laflam, 369 F.3d 153, 156-67 (2d Cir. 2004) (evidence that the defendant was a
drug user admissible as proof of motive to commit the charged robbery); (3) a defendants
capacity to commit the charged crime, see United States v. Zender, 401 F.3d 36, 49-50 (2d
Cir. 2005) (evidence of prior fraud admissible as proof of the defendants financial
sophistication [and] his ability to execute complex schemes), revd on other grounds, 126 S.
Ct. 1976 (2006); (4) the defendants consciousness of guilt, see, e.g., United States v.
Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991); and (5) explain the development of the
illegal relationship between co-conspirators and the mutual trust that existed between co15
conspirators, see United States v. Riccardi, No. 14-CR-2986, 2015 WL 3916101, at *3 (2d
Cir. June 26, 2015) (quoting United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999); Pitre, 960
F.2d at 1119 (internal citations omitted); United States v. Mercado, 573 F.3d 138, 141-42 (2d
Cir. 2009). See also United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000) (upholding
admission of prior act evidence involving charged co-conspirators to inform the jury of the
background of the conspiracy charged, to complete the story of the crimes charged, and to
help explain to the jury how the illegal relationship between the participants in the crime
developed) (citations omitted); United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996)
(citing Lasanta, 978 F. 2d 1300, 1307-08 (2d Cir. 1992)); United States v. Pascarella, 84 F.3d
61, 73 (2d Cir. 1996) (other act evidence admissible to show the background of a
conspiracy or the development of a relationship of trust between the participants.); United
States v. Rosa, 11 F.3d 315, 333-34 (2d Cir. 1993) (holding that co-defendants relationship
over a 14-year period, during which stolen property and narcotics crimes were committed,
was properly admitted to explain how the illegal relationship between the two [defendants]
developed).
C.
Rule 403 Balancing Test

Admissible evidence may only be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
See Fed. R. Evid. 403
(emphasis added). This is true regardless of whether the Court considers the evidence of
uncharged crimes to be direct evidence of the charged crimes or to be governed by Rule
404(b). See e.g., United States v. Nektalov, 325 F. Supp. 2d 367, 372 (S.D.N.Y. July 14,
2004) (both the intrinsic evidence approach and the other acts evidence approach under
Rule 404(b) require the Court to balance probative value and prejudice under Rules 402 and
16
403). The fact that evidence is highly probative of guilt does not mean it is unfairly
prejudicial. Rather, the touchstone for unfair prejudice is the extent to which the evidence
creates a risk of conviction because of propensity. See Old Chief v. United States, 519 U.S.
172, 180 (1997) (The term unfair prejudice, as to a criminal defendant, speaks to the
capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a
ground different from the proof specific to the offense charged.). Put another way, unfair
prejudice means an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one. United States v. Nachamie, 101 F. Supp. 2d 134,
141 (S.D.N.Y. 2000) (quoting Rule 403, Advisory Committee Notes, 1972 Proposed Rules).
In making this assessment, a court should take into consideration the offering party's need
for evidentiary richness and narrative integrity in presenting a case. Old Chief, 519 U.S. at
183.
Several courts have found that other act evidence is not unfairly prejudicial
where it is not any more sensational or disturbing than the crimes with which the defendant
has been charged. United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990); see
also Curley, 639 F.3d at 59 (finding that the district court did not err in finding that the
probative value of prior acts of domestic violence with similar characteristics to the charged
conduct outweighed the potential prejudicial effect when the prior acts were no more
sensational than the charged conduct); see United States v. Abu-Jihaad, 630 F.3d 102, 133
(2d Cir. 2010) (finding that conversations referring to support of jihad were no more
inflammatory than the charges in the indictment); Mercado, 573 F.3d at 142 (upholding a
Rule 403 determination where the challenged evidence was not especially worse or
17
shocking than the transactions charged and where the district court instructed the jury as to
what inferences could properly be drawn from such evidence).
II.
Discussion
A.
Evidence of Other Crimes or Acts Committed by the Defendant is Admissible

to Provide Context and Background
The government moves in limine for the admission of evidence pertaining to
the acts and events set forth above. At trial, the government intends to elicit testimony from
DeMarco regarding the Sheriffs Offices underlying investigation of the charged crimes, as
well as the Sheriffs Offices attempt to investigate prior bad acts by the defendant. The
government seeks to introduce the testimony to provide the jury with background regarding
the efforts DeMarco undertook to investigate the charged crimes, which were thwarted at
every turn by Spota and others. This testimony is direct evidence of the charged crimes
because it will explain to the jury how the relationship between the defendant and Spota
provided the defendant with the continued opportunity and incentive to commit the charged
conduct, as the defendant knew he would not be prosecuted for, in sum, stealing his salary
from the Sheriffs Office. Indeed, given the evidence of the timing of the news reports of the
defendants misconduct (which predate the end of the charged crime), the government will
need to explain why and how the defendant continued to overstate his work hours and avoid
the consequences. Testimony about his relationship with Spota and DeMarcos inability to
find an audience for the defendants misconduct and take action about it will be critical to
proving the defendants intent and participation in the charged conduct.
Such testimony will also be important to prevent the jury from missing misled
or confused about DeMarcos actions and motivations in continuing his investigation and
18
reporting the misconduct to federal authorities. Given the arguments that the defense has
previewed before the media and the Court about DeMarco, the government submits that this
evidence is necessary to complete the story of the crime on trial. See Carboni, 204 F.3d at
44. Each of DeMarcos previous attempts to investigate the defendant which largely
occurred during the period of the charged conduct undercut the defendants expected
argument that DeMarco brought this case to the federal government for other reasons, and
place DeMarcos narrative in context.
With respect to the anonymous complaints, DeMarco was advised that the
defendant was engaged in political activity while at work. In response to each complaint, he
directed that the defendant be counseled against such activity. In 2010, in response to one of
these complaints, DeMarco even asked Spota to speak with the defendant, in the hopes that
Spota, as the District Attorney, would have influence over the defendant. DeMarcos
testimony about the warnings given to the defendant is direct evidence of the defendants
knowledge that his conduct was wrong and his intent to commit the charged crimes, as he
continued to engage in the conduct even after being warned that what he was doing was
wrong.
Despite DeMarcos efforts and the warnings, the defendant continued
conducting Conservative Party work while billing and working for the Sheriffs Office. For
example, DeMarco learned that Conservative Party paperwork and correspondence was
located in the trunk of the defendants official vehicle. DeMarco again raised the issue of the
defendants conduct with Spota and sought his assistance in the investigation. Again, Spota
minimized DeMarcos concerns, stating that Conservative Party material in a Sheriff Offices
vehicle was not a big deal. DeMarcos efforts to address the defendants conduct in
19
participating in Conservative Party activity while on Suffolk County government time

which is, in and of itself, a violation of the law and Spotas dismissal of DeMarcos
concerns is essential to completing the narrative of this case. It illustrates the defendants
position of authority and power in Suffolk County, despite his status as a subordinate
employee of DeMarcos, and explains his intent and ability to continue to violate the law.
With respect to the 2012 news reports about the defendants false statements
on his application for employment with the Sheriffs Office, DeMarco, likewise, tried to
investigate the reports. Indeed, DeMarco was concerned and looked into the issue, but was
unable to take personnel action and suggested to those concerned that, if criminal, the matter
be referred to the DAs Office. Again, DeMarcos actions related to reports of the
defendants conduct reports that occurred during the charged time period demonstrate
that DeMarco took seriously allegations of misconduct and sought to address them, even
though he was once again met with limitations. Thus, this evidence is necessary to complete
the narrative, explain both why DeMarco took the actions that he did, and refute the
defendants defense to the charges.
With respect to the defendants June 2012 detention by the SCPD during the
raid of an illegal gambling establishment, DeMarco will testify that he was notified of the
defendants detention by Spota himself, and that Spota instructed DeMarco, in sum and
substance, not to do anything and that the DAs Office would take care of it. Again,
DeMarco attempted to conduct an administrative investigation into the defendants actions.
While the DAs Office failed to bring criminal charges related to the defendants
participation and/or presence at the illegal poker game, the DAs Office did not return phone
calls and otherwise failed to assist the Sheriffs Office in the Sheriffs Office s internal
20
investigation of a Correction Officer present at an illegal gambling establishment and his

blatant association with felons.
Further, when trying to investigate the charged conduct, DeMarco was not
only met with resistance from Spota, he was told by Spota that Spota would not issue any
subpoenas related to the defendants conduct and, if he (Spota) had known the Sheriffs
Office was also investigating the defendant, the DAs Office would not have gone so hard
on Compitello, a fellow Correction Officer who also submitted false and fraudulent time
sheets. Indeed, according to DeMarco, Spota minimized all of DeMarcos concerns
regarding the defendant, stating, in sum and substance: that the surveillance evidence was not
sufficient; that the Conservative Party material in an official vehicle was not a big deal; and
that the printout of the defendants golfing activities did not contain a specific time linked to
the defendants alleged activities. DeMarco requested a subpoena for the defendants golf
records. In response, Spota stated I am not subpoenaing anything. DeMarco left the DAs
Office without the requested subpoenas for the defendants golf records.
Thus, DeMarcos testimony about his interactions with Spota and his failed
attempt to investigate the defendants presence at the raid is again important direct evidence
of the defendants intent and ability to commit the charged crimes. Indeed, if the defendant
persists in his claim that this is a time sheet case that should not be the subject of a federal
criminal prosecution, it will be critical for the jury to hear this background.
The government also anticipates that the defense will allege that DeMarco was
aware of and consented to the defendants absence from work during regular and overtime
work hours. Evidence about DeMarcos interactions with the DAs Office and his efforts to
21
have the defendant criminally investigated for this very conduct during the time set forth in
the Indictment will be critical to rebutting such baseless arguments.
Moreover, the defendants comments to Baisley implying that the DAs
Office and Spota will not investigate or prosecute the defendant is extremely probative of
the defendants intent to commit the charged crimes. The defendants comments
demonstrate that he knew what he was doing was wrong but that he did it anyway because he
believed he would not be prosecuted for his conduct. Such testimony is direct evidence of
the charged crimes.
B.
Evidence of Other Crimes or Acts Committed by the Defendant is Admissible

Pursuant to Fed. R. Evid. Rule 404(b)
The proffered evidence regarding the other bad acts committed by and
involving the defendant is also admissible pursuant to Rule 404(b) as evidence of the
defendants opportunity and intent, to prove lack of mistake, and to refuse the defendants
defense to the charges. As discussed above, evidence of Spotas failure to assist in and,
arguably, thwart the Sheriffs Offices investigations into the defendants conduct is critical
to establishing the defendants opportunity to commit the charged crimes, as well as the
defendants, seemingly justified belief, that the DAs Office would not prosecute him for his
criminal conduct. Indeed, the DAs Office failure to prosecute the defendant for other
criminal conduct during the charged period in particular, his June 2012 detention at an
illegal gambling establishment and the DAs Offices resistance in assisting the Sheriffs
Office administrative investigation of this event provided the defendant with the
opportunity to commit the charged conduct and to allow the defendant to feel comfortable
continuing to break the law because Spota was going to protect him. This evidence
22
illustrates the defendants opportunity to commit the charged crimes and that his conduct was
not a mistake but, rather, were the calculations of a political party boss who believed himself
above the law due to his powerful connections and the protections he believed they afforded
him.
C.
Evidence of Other Bad Acts is Not Unduly Prejudicial

Finally, the probative value of the other acts evidence is not substantially
outweighed by its prejudicial effect. Evidence of other crimes is admissible when offered for
a proper purpose through the various types of evidence, as long as the evidence [d]oes not
involve conduct any more sensational or disturbing than the crime [] with which [the
defendant has been] charged. Pitre, 960 F.2d at 1120 (quoting Roldan-Zapata, 916 F.2d at
804).
As discussed above, the evidence relating to the defendants other bad acts
will come primarily from the testimony of DeMarco. Accordingly, the quality of the
evidence is no more prejudicial than that offered with regard to the other charged crimes.
DeMarco can be cross-examined just as he would be with respect to his testimony regarding
his investigation of the charged crimes.
The proposed evidence is also not unfairly prejudicial to the defendant because
the evidence of the anonymous complaints regarding the defendants use of his political
position at work, the false statements on his Sheriffs Office application, and his presence at
an illegal gambling establishment is not any more sensational or disturbing than the
charged conduct where the defendant is alleged to have wielded his political power to
attempt to avoid having to go to work, to have submitted false and fraudulent time and
accrual sheets to the Sheriffs Office, and where the defendant is alleged, at times, to be
23
gambling and performing Conservative Party work while he claimed to be working for the
Sheriffs Office. See e.g., United States v. Sanpedro, 352 Fed. Appx 482, 485 (2d Cir.
2009) (summary order) (noting that prejudice is informed by the crimes with which the
defendant has been charged); Livoti, 196 F.3d at 326; see also United States v. Taylor, 767
F. Supp. 2d 428, 441 (S.D.N.Y. 2010) (holding that evidence of other robberies in a Hobbs
Act robbery case was admissible and not prejudicial).
The Second Circuit has stated repeatedly that Rule 403 favors the admission of
evidence where the uncharged crimes did not involve conduct more serious than the
charged crime[s]. Williams, 205 F.3d at 33-34. At most, the prior conduct sought to be
admitted here is similar to the charged conduct.
There is, therefore, no danger that the admission of the proffered evidence
would inflame the jury, and accordingly, the government should be permitted to offer such
evidence. See Advisory Committees Notes on Rule 403 (Unfair prejudice within [Rule
403s] context means an undue tendency to suggest decision on an improper basis
commonly, though not necessarily, an emotional one.). Finally, any possible prejudice can
be eliminated through a proper limiting instruction. See e.g., United States v. Mickens, 926
F.2d 1323, 1328-29 (2d Cir. 1991); United States v. Ortiz, 857 F.2d 900, 903 (2d Cir. 1988);
United States v. Levy, 731 F.2d 997, 1002 (2d Cir. 1984).
24
POINT II
The Defendant Should Be Precluded From Introducing Evidence
Of Prior Bad Acts by Unindicted Sheriffs Office Employees
The government also moves to preclude the defendant from mentioning in his
opening statement, cross-examining the governments witnesses, or introducing evidence in
his case-in-chief (should the defendant elect to present a defense), that seeks to prove other
bad acts allegedly committed by other, unindicted Correction Officers and/or employees of
the Sheriffs Office. The government anticipates that the defendant will seek to cross
examine DeMarco regarding the alleged conduct of other, unindicted Sheriffs Offices
employees and/or introduce the testimony of a number of witnesses who will testify
regarding others bad acts and/or DeMarcos knowledge of others bad acts. The anticipated
cross examination on this issue and/or introduction of these witnesses to attack DeMarcos
credibility should not be permitted, as such testify would relate to collateral issues. See
Governments Motion to Quash, dated March 6, 2016, which is attached hereto as Exhibit 8.
25
CONCLUSION
For the reasons stated above, the government respectfully submits that
evidence of the defendants prior bad acts is admissible, either as direct evidence or pursuant
to Rule 404(b).
Dated:
Central Islip, New York

March 8, 2016
Respectfully submitted,
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
By:
26
/s/ Catherine M. Mirabile

Catherine M. Mirabile
Raymond A. Tierney
Assistant United States Attorneys
Case 2:15-cr-00091-ADS Document 60-1 Filed 03/08/16 Page 1 of 31 PageID #: 293
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8

USA v. Edward M. Walsh, Jr.

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Case 2:15-cr-00091-ADS Document 60 Filed 03/08/16 Page 1 of 27 PageID #: 266

- against EDWARD M. WALSH, JR.,

THE GOVERNMENTS MOTION IN LIMINE REQUESTING

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The Governments Anticipated Evidence

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Further, DeMarco is expected to testify that his efforts to investigate the

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2012 Correspondence Regarding Walshs Prior Arrest in Maryland

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Defendants June 2012 Detention by the Suffolk County Police Department

detained during a court-authorized Suffolk County Police Department (SCPD) raid of an

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The Underlying Investigation of the Charged Conduct

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The Testimony of Sheriff Offices Internal Affairs Unit Supervisor

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The Anticipated Defense Arguments

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Wexler has said his clients legal problems began when he

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Admissibility of Other Acts as Direct Evidence

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Admissibility of Other Acts Evidence Pursuant to Rule 404(b)

wrongs, or acts may be admissible as evidence of the defendants motive, opportunity,

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Case 2:15-cr-00091-ADS Document 60 Filed 03/08/16 Page 17 of 27 PageID #: 282

Rule 403 Balancing Test

substantially outweighed by the danger of unfair prejudice.

See Fed. R. Evid. 403

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Evidence of Other Crimes or Acts Committed by the Defendant is Admissible

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participating in Conservative Party activity while on Suffolk County government time

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investigation of a Correction Officer present at an illegal gambling establishment and his

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Evidence of Other Crimes or Acts Committed by the Defendant is Admissible

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Evidence of Other Bad Acts is Not Unduly Prejudicial

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Central Islip, New York

/s/ Catherine M. Mirabile

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