Krugerboylanddocs 3

Case 1:11-cr-00300-JSR Document 144
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------X : UNITED STATES OF AMERICA : : - v. : : CARL KRUGER, : RICHARD LIPSKY, : AARON MALINSKY, : MICHAEL TURANO, : SOLOMON KALISH, : ROBERT AQUINO, and : WILLIAM BOYLAND, JR., : : Defendants. : : -------------------------------X
S1 11 Cr. 300 (JSR)
THE UNITED STATES OF AMERICAS RESPONSE TO THE DEFENDANTS PRETRIAL MOTIONS
PREET BHARARA United States Attorney Southern District of New York Attorney for the United States of America
GLEN G. McGORTY WILLIAM J. HARRINGTON MICHAEL BOSWORTH Assistant United States Attorneys - Of Counsel -
PRELIMINARY STATEMENT The Government respectfully submits this memorandum in opposition to the pretrial motions filed by defendants Carl Kruger, Richard Lipsky, Aaron Malinsky, Michael Turano, Solomon Kalish, Robert Aquino, and William Boyland, Jr. Specifically, (1) Boyland moves to suppress emails seized pursuant to search warrant from his America Online, Inc. account; (2) Boyland moves for the use of a jury questionnaire at his November 1, 2011 trial; (3) Lipsky moves to suppress computers and computer-related data seized from his residence pursuant to a search warrant; (4) Lipsky moves to suppress emails seized from his Google account; (5) Mailinsky and other defendants move to dismiss Counts One, Two and Ten of the Indictment on the grounds that they are multiplicitous; (6) Malinsky and other defendants move to dismiss Counts 10 and 11 of the Indictment for failure to allege sufficient facts to support money laundering conspiracy charges; (7) Aquino and other defendants move to dismiss the Indictment as insufficiently pled; (8) Aquino and other defendants move to dismiss the Indictment on the grounds that the statutes charging them are unconstitutional; (9) Aquino and Turano move for Brady material; and (10) Lipsky and Malinsky move for severance. (The Government will file its response to the defendants motion for severance under United States v. Finkelstein, 526 F.2d 517 (2d Cir. 1975) on Wednesday, October 5, 2011, in accordance with the Courts approval for a request for an adjournment.) For the reasons set forth below, the Government respectfully requests that the ten motions be denied in their entirety.
RELEVANT BACKGROUND On April 7, 2011, Superseding Indictment S1 11 Cr. 300 (JSR) (the "Indictment") was filed in this District charging eight defendants with a variety of overlapping counts related to the bribery of several New York State public officials. Counts One and Two charge defendants Carl Kruger, Richard Lipsky, Aaron Malinsky, and Michael Turano, with various crimes relating to bribes that Kruger received...from Lipsky and Malinsky and which Kruger directed to bank accounts established by Turano for the benefit of Kruger, Turano, and others. Indictment 1. The bank accounts included a bank account in the name of Olympian Strategic Development Corp. (Olympian). Indictment 4(d). Count One charges the defendants with conspiring to commit honest services fraud from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States Code, Section 1349, and Count Two charges the defendants with conspiring to commit bribery and to violate the Travel Act from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States Code, Section 371. Counts Three and Four charge defendants Kruger, Solomon Kalish, David Rosen, Robert Aquino, and Turano with various crimes relating to bribes that Kruger would and did receive from Kalish, Rosen, and Aquino. Indictment 10. In this bribery scheme, according to the Indictment, the bribes were paid to Adex Management, Inc. (Adex), a company controlled by Kalish. These corrupt payments were subsequently paid by Adex to bank accounts established by Turano for the benefit of Kruger, Turano, and others, including the Olympian account. Id. Count Three charges these defendants with conspiring to commit honest services fraud from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States 2
Code, Section 1349. Count Four charges these defendants with conspiring to commit bribery and violate the Travel Act from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States Code, Section 371. Count Fives through Nine charge a variety of crimes relating to bribes that defendant David Rosen paid to politicians. Specifically, Count Five charges Rosen in connection with a mail fraud scheme to deprive New York citizens of the honest services of their legislators, namely, Kruger, Anthony Seminerio and William Boyland, Jr., from in or about 1997 through in or about September 2008, in violation of Title 18, United States Code, Sections 1341 and 1346. Count Six charges Rosen with the same scheme as a wire fraud, in violation of Title 18, United States Code, Sections 1343 and 1346. Count Seven charges Rosen with a conspiracy involving bribes paid to Seminerio from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States Code, Section 371. Count Eight charges Rosen and Boyland with conspiring to commit honest services fraud from in or about 2003 through in or about 2008, in violation of Title 18, United States Code, Section 1349. Count Nine charges Rosen and Boyland with conspiring to commit bribery and violate the Travel Act from in or about 2003 through in or about 2008, in violation of Title 18, United States Code, Section 371. Count Ten charges defendants Kruger, Lipsky, Malinsky, and Turano with money laundering conspiracy in relation to the bribes charged in Counts One and Two from at least in or about 2006 through in or about March 2011, in violation of Title 18, United States Code, Section 1956(h). Count Eleven charges defendants Kruger, Kalish, and Turano with money laundering conspiracy in relation to the bribes charged in Counts Three and Four from at least in or about 3
2006 through in or about March 2011, in violation of Title 18, United States Code, Section 1956(h). On April 15, 2011, Rosen filed a severance motion based principally on his request for an expedited trial. The Government consented to that request and Rosen was tried separately from July 25, 2011 through August 12, 2011. The Government also consented to Boylands motion for severance, and he will be tried on November 1, 2011. All remaining defendants in the case will be tried on January 17, 2012. ARGUMENT POINT I Boylands Motion to Suppress Emails Is Foreclosed by the Stored Communications Act
On or about July 15, 2010, the Hon. Henry B. Pitman, United States Magistrate Judge for the Southern District of New York, signed a warrant authorizing the search of williamboylandjr@aol.com, an email account used by defendant William Boyland, Jr. (Boyland Email Account). Because, as set forth in the search warrant affidavit, the Boyland Email Account was controlled by America Online, Inc. (AOL) in Dulles, Virginia, the warrant that Judge Pitman signed authorized the search and seizure of property specifically emails contained in the Boyland Email Account located in the Eastern District of Virginia. Boyland now moves to suppress the emails seized from the Boyland Email Account, as well as the derivative fruits of the search and seizure of those emails. Boylands exclusive claim in support of suppression is that Judge Pitman, in the Southern District of New York, lacked jurisdiction to authorize the search and seizure of property located in the Eastern District of 4
Virginia. In support of such a claim, Boyland devotes multiple pages to citations and discussion of Rule 41(b)(2) of the Federal Rules of Criminal Procedure, the advisory committee notes to that rule, and numerous cases construing that role. What Boyland overlooks is that the Stored Communications Act as amended by the USA Patriot Act1 expressly vests, in any federal court overseeing a particular investigation, jurisdiction to issue a warrant authorizing the search and seizure of wire or electronic communications related to that investigation -- even where the wire or electronic communications are located in a different district. Specifically, Title 18, United States Code, Sections 2703(a) provides: A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in Federal Rules of Criminal Procedure...by a court of competent jurisdiction. 18 U.S.C. 2703(a)(emphasis added). Section 2703(b) similarly provides that electronic communications stored in an electronic communications system for more than one hundred and eighty days can be obtained without notice to the subscriber or customer, pursuant to a warrant issued using the procedures described in Federal Rules of Criminal Procedure...by a court of competent jurisdiction. 18 U.S.C. 2703(b)(1)(A). Title 18, United States Code, Section 2711
1
The USA Patriot Act amended the Stored Communications Act to vest, in any court with jurisdiction over the offense under investigation, the authority to issue a search warrant for electronic communications related to the investigation. See Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001, PL 107-56 (HR 3162). Section 2703(a) was, effective October 19, 2009, amended so that the authority to issue a search warrant was vested in a court of competent jurisdiction a term separately and expressly defined to include any court with jurisdiction over the offense being investigated. 5
thereafter explicitly defines the term court of competent jurisdiction to include, inter alia, any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that (I) has jurisdiction over the offense being investigated or is in or for a district in which the provider of a wire or electronic communication serviced is located or in which the wire or electronic communications, records, or other information are stored. Accordingly, the express and plain terms of the Stored Communications Act make clear that any federal court with jurisdiction over an offense under investigation has the authority to issue a warrant for the search and seizure of the contents of wire and electronic communications such as emails even where the contents of wire and electronic communications are located in a different district. The legislative history further supports this interpretation. See, e.g., H.R.Rep. No. 107-236, pt. 1, at 57 (2001) (Section 108 amends 2703 to authorize the court with jurisdiction over the investigation to issue the warrant directly, without requiring the intervention of its counterpart in the district where the ISP is located); 147 Cong. Rec. H7197-98 (2001) (Section 220 [p]ermits a single court having jurisdiction over the offense to issue a search warrant for e-mail that would be valid ... anywhere in the United States.). And numerous courts have embraced the interpretation of Section 2703 the Government advances here. See, e.g., United States v. Berkos, 543 F.3d 392, 396 n.2 (7th Cir. 2008) (explaining that, following the Patriot Act, search warrants could be issued by a court with jurisdiction over the offense under investigation, rather than exclusively by the court with geographical jurisdiction of the electronic property sought by the warrant (quotation omitted)); United States v. Noyes, 2010 WL 5139859, *9 n.8 (W.D. Pa 2010) (the Act authorizes courts to issue search warrants for electronic communications and evidence located in other judicial districts in cases where the issuing court 6
has jurisdiction over the offense under investigation); In re Search of Yahoo, Inc., 2007 WL 1539971 at*5 (D.Ariz., 2007)([T]he Court concludes that when Congress amended Section 2703(a) via Section 220 of the USA Patriot Act to add the phrase a court with jurisdiction over the offense, Congress intended to authorize the federal district court located in the district where the alleged crime occurred to issue out-of-district warrants for the seizure of electronically-stored communications.); In re Search Warrant, 2005 WL 3844032, at *6 (the Court finds that out-of-district warrants may be issued in non-terrorism-related investigations under Section 2703 as amended by Section 220 of the Patriot Act, and that the issuance of such warrants is not restricted by the language of Rule 41(b)). In this case, at the time Judge Pitman authorized a search of the Boyland Email Account, the Southern District of New York had jurisdiction over the offense for which Boyland was being investigated, and, as a result, the Southern District of New York was a court of competent jurisdiction for the purposes of the Stored Communications Act. Given that the Southern District of New York was a court of competent jurisdiction regarding the Boyland investigation, under the clear provisions of Section 2703, Judge Pitman a United States Magistrate Judge for the Southern District of New York had jurisdiction to issue a warrant for the contents of the Boyland Email Account, even though the headquarters of AOL itself was located in the Eastern District of Virginia. Boylands challenge to Judge Pitmans authority to issue a warrant for emails in the Boyland Email Account is meritless and Boylands suppression motion should accordingly be denied.
POINT II There Is No Need For A Jury Questionnaire at the Boyland Trial Boyland has also moved the Court to use a jury questionnaire to determine whether prospective jurors have been prejudiced by media coverage of this case. The Government opposes this motion because: (1) the use of a jury questionnaire would unduly delay trial; and (2) Boyland has not established that a jury questionnaire is or would be any more effective at rooting out juror bias than would a searching voir dire by the Court. The Government agrees, of course, that potential jurors in this case must be questioned about their ability to be fair and impartial. However, meaningful voir dire would be equally as effective and dramatically less time-consuming a means of achieving that goal. The use of a jury questionnaire will add days if not weeks to the jury selection process. And there is absolutely no reason to lengthen the trial through the use of a questionnaire -- particularly since the defendant has not explained why a written jury questionnaire would be any more effective than voir dire in rooting out potential juror bias. See, e.g., United States v. Harding, 273 F.Supp. 2d 411, 429 (S.D.N.Y. 2003) (Kaplan, J.) (denying a request for a jury questionnaire - in a case against a former New York City Commissioner - because the defendant failed to demonstrate that use of a written questionnaire is necessary or preferable to a proper voir dire conducted by the Court). And the mere fact that this case has garnered media attention does not itself provide any rationale as to why a jury questionnaire is a better a means of exposing juror bias than effective voir dire. See, e.g., United States v. Salameh, 1993 WL 364486 (S.D.N.Y. 1993) (Duffy, J.) (denying a request for a jury questionnaire in the World Trade Center bombing case because the defendant, an accused terrorist, had made absolutely no showing that jury questionnaires are of any 8
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particular help in the selection of a jury in highly publicized cases where a searching voir dire is conducted). Furthermore, although the Second Circuit has approved the use of written jury questionnaires, that Court has expressly disclaimed the notion that questionnaires could ever be a required part of voir dire. See, e.g., United States v. Quinones, 511 F.3d 289, 300, n.8 (2d Cir. 2007) (In approving the use of questionnaires as part of voir dire, we do not hold that district judges are ever obligated to make use of this procedure in selecting juries). This is because [t]he questioning of potential jurors on voir dire is...quintessentially a matter for the discretion of trial courts. United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002). It also bears noting that the Second Circuit has twice affirmed Your Honors decision not to require jury questionnaires. See Quinones, supra; United States v. Treacy, 639 F.3d 32, 47 (2d Cir. 2011) (affirming this Courts decision not to employ a jury questionnaire and noting that Judge Rakoffs personal policy is well within his bailiwick as a trial judge so long as he conducts adequate voir dire by some other means). Accordingly, for these reasons, the Government respectfully submits a jury questionnaire is not necessary or required in this case. POINT III Lipskys Motion to Suppress The Electronic Data Seized From His Home Is Meritless Lipsky first moves to suppress the electronic data seized from the search of his office and residence at 140 Riverside Drive, Apartment 8J, New York, New York. He does so principally on the ground that Government agents here, the Federal Bureau of Investigation (FBI)
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exceeded the scope of the search warrant by seizing all of Lipskys electronic data, rather than performing an on-site review for relevancy and responsiveness. By doing so, Lipsky claims, the agents seized a vast quantity of material beyond what was permitted by the [warrant]. Memorandum of Law In Support of Richard Lipskys Pretrial Motions (Lipsky Motion) at 11. What Lipsky neglects to mention is that the affidavit submitted in support of the search warrant repeatedly cautioned that because of the practical difficulties of performing an on-site review of computers and computer-related data, agents may seize all such equipment and review for relevancy only afterwards. Furthermore, the affidavit submitted by Special Agent Christopher Kelly (Lipsky Residence Affidavit attached as Exhibit A) expressly requested permission to seize computers and computer-related data and search this equipment for relevancy only afterwards. Paragraphs 50 and 51 of the Lipsky Residence Affidavit which Lipsky curiously neglects to cite explicitly provided: (1) [i]f the computer equipment and storage devices cannot be searched on-site within a reasonable amount of time and without jeopardizing the ability to preserve the data...the computer personnel will determine whether it is practical to copy the data during the execution of the search...; Ex. A at 50; and (2) [i]f the computer personnel determine that...it is not practical to perform an on-site search or make an on-site copy of the data, then the computer equipment and storage devices will be seized and transported to an appropriate law enforcement laboratory for review, Ex. A at 51. When agents encountered computer and computer-related data at the Lipsky Residence, FBI personnel (including computer personnel) agents seized the data by imaging it i.e., making a copy of the electronic data, a process that itself took hours to complete and transported the imaged copies of the data to the FBI for review at a subsequent time. These actions, contrary to Lipskys claim, are precisely 10
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what the warrant authorized and permitted. And to the extent Lipsky raises other objections to the handling of the seized electronic data, his arguments are meritless and, in any event, they present no cause for suppression of any kind. 1. Relevant Background
On March 4, 2011, the Government submitted an application for a warrant authorizing the search of the office/residence of Richard Lipsky at 140 Riverside Drive, Apartment 8J, New York, New York (Lipsky Residence). In support of that application, the Government submitted a detailed affidavit from FBI Special Agent Christopher Kelly. The Lipsky Residence Affidavit described a bribery scheme involving Lipsky and other co-conspirators including New York State Senator Carl Kruger, a scheme in which, generally speaking, KRUGER accepted bribes by sharing lobbying fees paid to RICHARD LIPSKY and then taking the very official acts in favor of which LIPSKY had been paid to lobby. Lipsky Residence Affidavit at 5. The Lipsky Residence Affidavit then set out detailed facts supporting determinations that there was probable cause to believe that Lipsky had engaged in various crimes, see id. at 7-37, and that there was probable cause to believe that the Lipsky Residence contained instrumentalities, evidence, and fruits of those crimes, see id. at 38-39. The adequacy of these probable cause determinations is not contested in Lipskys Motion. See Lipsky Motion at 11 (Assuming arguendo that the government establish probable cause...). The Lipsky Residence Affidavit set out with particularity a list of the materials that the Government sought permission to search and seize, including various financial and business records. See id. at 41; 54(a)-(f). The Lipsky Residence Affidavit specifically requested permission for the Government to search and seize computers and other electronic data, namely: 11
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Computers; central processing units; external and internal drives; external and internal storage equipment or media; terminals or video display units; optical scanners; computer software; computerized data storage devices, including data stored on hard disks or floppy disks, computer printouts or computer programs; computer or data processing software or data, including: hard disks, floppy disks, CD-ROMs, Zip disks, PDAs, together with peripheral equipment such as keyboards, printers, modems or acoustic couplers, and magnetic tapes which could contain or be used to transmit or store any records, documents, and materials; any and all records, documents, and materials which refer, relate to, or include the source code or that may assist in identifying the person or persons who uses any of the computer systems or equipment; and other items containing or reflecting evidence of fraudulent activity. Id. at 42; 54(g). The Lipsky Residence Affidavit also provided that responsive materials whether computer data or otherwise would be those that related to a detailed list of individuals and entities identified, namely, those enumerated in Paragraph 54(i). See id. at 54(a) - (i). Importantly for the purposes of the instant motion, the Lipsky Residence Affidavit contained an entire section specifically identifying and describing the methods to be used to seize and search computers and computer-related equipment. Id. at 46-53. Special Agent Kelly explained that [a]nalyzing computer systems for criminal evidence is a highly technical process requiring expert skill and a properly controlled environment. Id. at 46(b). Special Agent Kelly also expressly cautioned that it is usually necessary for the above-referenced equipment, software, data, and related instructions to be seized and subsequently processed by a qualified computer specialist. Id. (emphasis added). Special Agent Kelly made clear only that it may be the case that, under appropriate circumstances, an on-site review of computer data could occur. Id. (emphasis added). Thereafter, the Lipsky Residence Affidavit detailed the techniques by which computer 12
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data would be analyzed. In doing so, the Lipsky Residence Affidavit made clear that if the Court grants this application...the analysis of electronically stored data whether performed onsite or in a separate, controlled environment may entail any or all of several different techniques. Id. at 47. The Lipsky Residence Affidavit described the techniques by which the computer data would be analyzed, including surveying file directories, reading the first few pages of files, etc. Id. The affidavit then explicitly cautioned that computer equipment may be seized wholesale and reviewed for relevancy only later. Specifically, the Lipsky Residence Affidavit provided: 50. If the computer equipment and storage devices cannot be searched on-site within a reasonable amount of time and without jeopardizing the ability to preserve the data, and if the computer equipment and storage devices do not contain contraband, then the computer personnel will determine whether it is practical to copy the data during the execution of the search in a reasonable amount of time without jeopardizing the ability to preserve the data. 51. If the computer personnel determine that these items contain contraband, or that it is not practical to perform an on-site search or make an on-site copy of the data, then the computer equipment and storage devices will be seized and transported to an appropriate law enforcement laboratory for review. Id. at 50-51. On March 4, 2011, the search warrant application was presented to the Honorable Henry Pitman, United States Magistrate Judge, Southern District of New York, who signed the warrant and, in so doing, authorized the FBI to conduct the search of the Lipsky Residence and to seize computers and computer-related data as described in the Lipsky Residence Affidavit. When executing the search warrant for the Lipsky Residence, the FBI followed the protocols expressly identified in the Lipsky Residence Affidavit. When agents encountered computer and computer13
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related data at the Lipsky Residence, FBI personnel (including computer personnel) agents seized the data by imaging it i.e., making a copy of the electronic data, a process that itself took hours to complete and transported the imaged copies of the data to the FBI for review at a subsequent time. 2. The Execution of the Lipsky Residence Warrant Was Not Overbroad
Lipsky claims that there is no question that the government seized a vast quantity of material beyond what was permitted by the Computer Warrant. Lipsky Motion at 12. This claim is utterly without merit. As set forth above, the Lipsky Residence Affidavit explicitly cautioned that agents may have to seize computers and computer-related data in their entirety. To wit, Special Agent Kelly expressly stated, in his affidavit, that it is usually necessary for the above-referenced equipment, software, data, and related instructions to be seized and subsequently processed by a qualified computer specialist. Lipsky Residence Affidavit at 46(b). Special Agent Kelly made clear only that it may be the case that an on-site review of computer data could occur. Id. (emphasis added). Furthermore contrary to Lipskys puzzling claim that the Lipsky Residence Affidavit gave the impression that the government intended to seize only a discreet subset of electronic data, Lipsky Motion at 10 the Lipsky Residence Affidavit expressly requested permission to seize computers and computer-related data in their entirety and search these materials for relevancy only afterwards. Paragraph 50 and 51 of the Lipsky Residence Affidavit provided in unambiguous terms that: (1) [i]f the computer equipment and storage devices cannot be searched on-site within a reasonable amount of time and without jeopardizing the ability to preserve the data...the computer personnel will determine whether it is practical to copy the data 14
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during the execution of the search...; Ex. A at 50; and (2) [i]f the computer personnel determine that...it is not practical to perform an on-site search or make an on-site copy of the data, then the computer equipment and storage devices will be seized and transported to an appropriate law enforcement laboratory for review, Ex. A at 51. Here, when conducting a search of the Lipsky Residence, the FBI followed precisely the protocols identified and described in the Lipsky Residence Affidavit. When agents encountered computer and computer-related data at the Lipsky Residence, FBI personnel (including computer personnel) agents seized the data by imaging it i.e., making a copy of the electronic data, a process that itself took hours to complete and transported the imaged copies of the data to the FBI for review at a subsequent time. This process itself satisfies the reasonableness requirement that is the touchstone of Fourth Amendment jurisprudence. For example, in United States v. Vilar, 2007 WL 1075041 (S.D.N.Y. 2007) (Karas, J.), the defendants challenged the seizure and subsequent search of certain computer data. Such a seizure and subsequent search was, the defendants claimed, inter alia, overbroad. The Court squarely rejected the challenge. Judge Karas explained that the ultimate Fourth Amendment standard is the same for both computer and hard-copy searches: reasonableness. Id. at *35. The Court recognized that, when it comes to computer searches, because of time restraints and insurmountable technical limitations, such searches cannot be carried out at the time the warrant is executed at the premises. Id. Judge Karas concluded that the seizure of computer data and their subsequent search off-site was reasonable and denied the motion. Notably, the Court rejected the overbreadth challenge in Vilar where the warrant made no mention of the fact that computer data might, in fact, be seized and subsequently searched off15
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site. In this case, by contrast, the Lipsky Residence Affidavit expressly provided that a seizure and subsequent search of computer-related data might occur. The process by which the FBI seized the data was accordingly not only reasonable, it was expressly sanctioned by the Court when Judge Pitman signed the warrant on March 4, 2011. There can be no question, then, that the agents who seized the computer-related data from the Lipsky Residence for search at a later date acted within the scope of the warrant as well as in good faith. Accordingly, Lipsky cannot satisfy either of the prongs that he must in order to demonstrate that the agents acted in flagrant disregard of the terms of the warrant and that, as a result, suppression of is required. See United States v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (Government agents flagrantly disregard the terms of a warrant so that wholesale suppression is required when (1) they effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.). Lipsky also claims that suppression is justified because the agents have not completed their review for relevancy and because the Government, as part of discovery, produced the electronic data seized from the Lipsky Residence to all the defendants in this case. As to the former, delay in searching the properly-seized computer data is not a justification for suppression. For one thing, the Lipsky Residence Affidavit did not propose any time frame within which the review of seized computers would be completed. Nor has Lipsky cited any authority in support of the proposition that suppression in such a circumstance would be justified. The only authority he cites in support of this argument is Doane v. United States, 2009 WL 1619642 (S.D.N.Y. 2009) a case which does not even address the issue. In Doane, the Government seized paper documents that included paper documents outside the scope of 16
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those set forth in the search warrant, and seized all those documents so that it could subsequently search for responsive documents pursuant to the warrants terms when practicable. In that case, however, the materials at issue were not electronic files and the search warrant did not as here set forth specific protocols for conducting the seizure and subsequent search of electronic storage devices. Regardless, even in Doane, Judge Pitman held that the Government may seize all containers holding responsive items [along with non-responsive ones] without rendering the entire search unlawful. Id. at *10. Judge Pitman even further ruled that retention of the items outside the scope of the warrant can be justified if the Government meets its burden of demonstrating that those items fall within an exception to the warrant requirement. Thus, Doane provides no support for Lipskys objection to the delay in searching the seized computers. Additionally, any delay in searching the computers and data seized from the Lipsky Residence is justified and reasonable. The agents best positioned to conduct the relevancy search have been working tirelessly in this case. Among other things, they compiled, for production of discovery, hundreds of thousands of documents and thousands of wiretapped call; they assisted in the lengthy preparation for and conduct of the David Rosen trial; they have assisted in the preparation for the Boyland trial; and they have reviewed for relevancy other voluminous electronic materials in the case (including the 9,000 Lipsky emails discussed infra). Any delay is justified and reasonable, and the agents who were not directed either by the Lipsky Residence Affidavit or the Government to prioritize the search of the computer data certainly have operated in good faith, which forecloses any suppression motion on this ground. In any event, the agents will complete their relevancy review of the Lipsky computer data well in advance of trial which is still nearly four months away and certainly in time for Lipsky to adequately 17
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prepare for trial.2 As to Lipskys claim that the Government improperly produced the computers and computer-related data to him and the other defendants in advance of a relevancy review, this claim, too, provides no justification for suppression. For one thing, Lipsky has not cited a single authority in support of the proposition that production of materials that may be beyond the scope of a warrant is itself a ground for suppression. In any event, the Government manifestly operated in good faith in making this production. First, as a general matter, the Government routinely produces hard drives and other electronic data to all defendants even when those materials may contain data not responsive to a search warrant or subpoena so that the defendants can have their own forensic experts analyze the data for authenticity, integrity, and lack of manipulation. Indeed, had the Government not produced the computer data in this case, the Government suspects one or more of the defendants may have moved this Court to order the production of the complete computer data seized from the Lipsky residence. Second, in this case, in an excess of caution and out of a good faith consideration for the defendants ability to meaningfully prepare to contest any evidence that may be introduced at trial, the Government has produced to all defendants all non-testimonial evidence acquired in the case, whether or not it technically satisfies the requirements of Rule 16. The defendants have not complained about this practice thus far, nor, does the Government suspect, will they. Third, the Government specifically produced computer data to Lipsky and the other defendants some of whom may be inculpated
2
Lipsky claims there is no indication that the government intends to limit the use of Lipskys electronic data in the manner described in the Computer Warrant. This claim is baseless. The Government has repeatedly assured Lipsky that the agents will follow the requirements of the Lipsky Residence Warrant just as they did in executing the warrant and just as they have done in conducting the subsequent search of the computers. 18
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by data contained in the computer (just as they are implicated by emails found in Lipskys Google account, see infra) because the Government did not want to delay the defendants ability to begin preparing to contest the evidence, nor did the Government want to impede the defendants review for Brady material. Fourth and finally, to the extent Lipsky raises privacy concerns implicated by the Governments production of the computers, the Government and the defendants jointly sought and the Court signed a protective order in this case precisely to safeguard the privacy interests of the defendants and third parties. Lipsky argues that if his suppression motion is not granted, the Court should require the Government to conduct the review of the computers and computer-related data consistent with the search protocols suggested by the Ninth Circuit in United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (CDT). See Lipsky Motion at 22. Such methods would involve the use of walled agents, the waiver of the plain view doctrine, and other provisions, none of which are required by the Fourth Amendment. The Government respectfully submits that these protocols are unnecessary. The FBIs methods for searching computer data are sufficient and they adequately take into account the need to safeguard privacy interests. Furthermore, it bears noting that neither the Second Circuit nor, it appears, a single district court in this Circuit has adopted the protocols Lipsky urges this Court to adopt. United States v. DAmico, 734 F.Supp.2d 321, 366 (S.D.N.Y. 2010)(McMahon, J.) (To date, it does not appear that any district court decision in this Circuit has embraced CDT.). Meanwhile, a number of other circuit courts have rejected the argument that the Fourth Amendment requires that computer search warrants contain search protocols, and some have specifically rejected one or more of the the protocols suggested in CDT. See United States v. Mann, 592 F.3d 779, 785-86 19
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(7th Cir. 2010) (declining to impose CDT protocols); United States v. Stabile, 633 F.3d 219, 241 n.16 (3d Cir. 2011) (declining to impose the CDT protocol regarding foreswearing reliance on the plain view doctrine); United States v. Cartier, 543 F.3d 442, 447-48 (8th Cir. 2008); United States v. Khanani, 502 F.3d 1281, 1290-91 (11th Cir. 2007); United States v. Brooks, 427 F.3d 1246, 1251-53 (10th Cir. 2005); United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999) (The warrant process is primarily concerned with identifying what may be searched or seizednot how). See also United States v. Farlow, 2009 WL 4728690, *6 (D.Me.2009) ("The judicial directive to forswear in advance the plain view doctrine, placed in a different context, is equivalent to demanding that a DEA investigative team engaged in the search of a residence for drugs promise to ignore screams from a closet or a victim tied to a chair.) And tellingly, not even the Ninth Circuit itself has required the protocols described in CDT; they are, as Lipsky acknowledges, merely protocols that the Ninth Circuit suggested. For all these reasons, Lipskys motion to suppress computer evidence seized from the Lipsky Residence is without merit, as his request for the Court to require protocols for searching the computer evidence other than protocols identified in the Lipsky Residence Affidavit. POINT IV The Warrant Authorizing the Search of Lipskys Email Account Was Supported by Probable Cause and Was Not Overbroad Lipsky also moves to suppress the e-mails seized, pursuant to a search warrant, from Lipskys Google e-mail account, richardlipsky@gmail.com (Lipsky Email Account). Lipsky claims that (1) the warrant lacked probable cause to believe that the Lipsky Email Account would contain evidence of a crime; and (2) the warrant was overbroad. For the reasons set forth below,
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Lipskys claims are meritless, and his motion should be denied. 1. Relevant Facts
During the investigation, the Government also learned that Lipsky utilized a Google email account richardlipsky@gmail.com (the Lipsky Email Account) in connection with his lobbying business. On March 7, 2011, the Government contacted Google and requested that Google preserve the contents of the Lipsky Email Account so the Government could, at a future date, request for authorization to search its contents. On or about June 13, 2011, the Government submitted an application for, inter alia, a warrant authorizing a search of the Lipsky Email Account.3 In support of that application, the Government submitted a detailed affidavit from FBI Special Agent Christopher Kelly (Lipsky Email Affidavit). Special Agent Kelly explained that on March 10, 2011, criminal complaint 11 Mag. 648 (Complaint) was unsealed in this District charging Lipsky, Kruger, Turano and others with violations of Title 18, United States Code, Sections 1341, 1343, 1346, 1349, 1956(a)(1)(B) and 1956(h). Special Agent Kelly attached the Complaint to his affidavit as Attachment A and incorporated the Complaint and all of its allegations against Lipsky and the other defendants - by reference. See Lipsky Email Affidavit at 8. Special Agent Kelly further explained that on April 7, 2011, indictment S1 11 Cr. 300 (JSR) was filed in this District charging the same defendants, including Lipsky, Kruger, and Turano, in connection with the same subject matter addressed in the Complaint. Id. And Special Agent Kelly also indicated that
3
The application also sought authorization to search an email account of Olympian Strategic Development Corp (Olympian Email Account). The search of the Olympian Email Account is not at issue in the defendants pre-trial motions because the Olympian Email Account did not contain any emails. Michael Turano has reserved the right to file a motion seeking to suppress any emails seized from the Olympian Email Account. 21
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on March 4, 2011, the Honorable Henry Pitman had authorized a search of the Lipsky Residence, attached the Lipsky Residence Affidavit as Attachment B, and incorporated its contents by reference. Id. at 15. The Lipsky Email Affidavit therefore made clear that a determination had three times been made that there was probable cause to believe Lipsky engaged in a bribery scheme by Judge Pitman on March 4, 2011, by Hon. Kevin N. Fox on March 10, 2011, and by the grand jury on April 7, 2011. And the Lipsky Email Affidavit generally described the bribery scheme in which Kruger received bribes from, among others Richard Lipsky, and that Kruger directed that the bribes be paid to Olympian Strategic Development Corp. (Olympian) and Bassett Brokerage (Bassett), two shell companies established by Michael Turano. Id. at 9. The Lipsky Email Affidavit also detailed why there was probable cause to believe that the Lipsky Email Account contained fruits, evidence, and instrumentalities of the bribery conspiracy with which Lipsky had been charged. First, the Lipsky Email Affidavit described a hard copy of an email discovered at the residence of Michael Turano during a Court-authorized search of those premises (the affidavit in support of which was attached to the Lipsky Email Affidavit and incorporated by reference therein). The Lipsky Email Affidavit provided that on January 20, 3009, Lipsky sent an email to Arthur Gershfeld, an attorney, with a copy sent to romang@qualitylaboratory.com, and a copy sent to the Olympian Email Account used by Michael Turano, namely, mgt@osdny.com. The email attached a draft of a letter to an insurance company on behalf of Quality Laboratory Services regarding Quality Laboratory Services status as a participating provider. The draft letter included references to in my district and also described the purported authors constituents. Special Agent Kelly said that although the letter was unsigned, it appears to be 22
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for the review and signature of a public official. Special Agent Kelly explained that it seemed LIPSKY was using [the Lipsky Email Account] to send a letter through MICHAEL TURANO, for CARL KRUGERs review and possible use on LIPSKYs behalf. Special Agent Kelly also noted that during the duration of the wiretap investigation in this case, in numerous intercepted telephone calls, RICHARD LIPSKY and CARL KRUGER discussed LIPSKYs provision of written material to KRUGER for his use in support of the causes important to LIPSKYs clients. I believe that this letter...was just such a document. See Lipsky Email Affidavit at 21. Second, the Lipsky Email Affidavit described a number of phone calls intercepted during the wiretap investigation of Kruger, Lipsky, and others, in which Lipsky discussed using the Lipsky Email Account in connection with his lobbying business the very lobbying business that, according to the Complaint, gave rise to fees that Lipsky paid as bribes to Kruger in exchange for Krugers undertaking official actions on behalf of Lipsky and Lipskys lobbying clients. See Complaint at 21 (Specifically, KRUGER accepted bribes by sharing lobbying fees paid to RICHARD LIPSKY, the defendant, and then taking the very official acts in favor of which LIPSKY had been paid to lobby). The Lipsky Email Affidavit identified and described four such calls in which Lipsky discussed using the Lipsky Email Account in connection with his lobbying business, namely, calls on December 15, 2010, January 6, 2011, February 8, 2011, and February 16, 2011. See Lipsky Email Affidavit at 22(a) - (d) (describing the participants and contents of the calls). Notably, the fourth of those calls, a call on February 16, 2011, was a call between Lipsky and Carl Krugers chief of staff, Jason Koppel, in which Koppel agreed to send Lipsky an email at the Lipsky Email Account. On the basis of the above-described communications, as well as his training, experience 23
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and familiarity with the investigation, Special Agent Kelly set forth his view that Lipsky utilized the Lipsky Email Account in connection with and in furtherance of the charged bribery crimes. See Lipsky Email Affidavit at 24. Special Agent Kelly also made clear that his view about probable cause was based on his general familiarity with the way in which bribery and money laundering co-conspirators communicate with one another, which includes communication by email. Id. at 25. The Lipsky Email Affidavit also described the specific procedure by which the Lipsky Email Account would be searched. Specifically, the Lipsky Email Affidavit provided that Google would have to produce the contents of all emails and attachments stored in the Lipsky Email Account. See Lipsky Email Affidavit, Attachment D at II. The Lipsky Email Affidavit further provided that the Government would subsequently search the emails for relevant and responsive documents, namely 55 individuals and entities specifically identified in the warrant. See Lipsky Email Affidavit, Attachment D at III. The Lipsky Email Affidavit further provided that the Government shall make reasonable efforts to utilize computer search methodology to search only for files, documents, or other electronically stored information which constitute fruits, evidence and instrumentalities of the charged crimes including information for the 55 individuals and entities identified in the warrant. Id. On June 13, 2011, the Hon. Debra Freeman, United States Magistrate Judge in the Southern District of New York, signed the search warrant. The warrant was thereupon provided to Google, which subsequently produced the emails in question. In light of concerns about the presence of privileged communications in the Lipsky Email Account, the Government established a taint team unaffiliated with this investigation to conduct a review. The Assistant 24
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U.S. Attorney on the taint team produced, to Lipskys counsel, all the emails in the Lipsky Email Account so that they could identify any emails they regarded to be privileged. Lipskys counsel identified approximately 1,000 emails as privileged.4 Only after Lipskys counsel had designated certain emails as privileged did the taint team produce the non-privileged emails to the FBI agents on this case so that they could conduct a relevancy review. The FBI agents assigned to this case thereafter reviewed the non-privileged emails for relevancy and this week concluded that review. The FBI will be turning over the universe of relevant emails to the AUSAs on this case this week or early next week, and the Government expects to produce the relevant emails to the defendants as early as late next week. 2. The Lipsky Email Affidavit Established Probable Cause That The Lipsky Email Account Would Contain Evidence, Fruits, and Instrumentalities
Lipsky first moves to suppress the emails obtained from the Lipsky Email Account on the ground that the warrant was not supported by probable cause. It is beyond cavil and Lipsky concedes here that there was probable cause to believe that Lipsky bribed Carl Kruger by directing lobbying fees to the Olympian account for the benefit of Kruger, Turano and others in exchange for official action by Kruger to benefit Lipsky and Lipskys clients. The grand jury concluded as much in charging Lipsky; Judge Fox found as much in signing the Complaint (incorporated by reference as Attachment A to the Lipsky Email Affidavit); and Judge Pitman found as much in approving the search requested by the Lipsky Residence Affidavit (incorporated by reference as Attachment B to the Lipsky Email Affidavit). Lipsky contends
The taint AUSA is reviewing the emails designated as privileged to determine whether the Government, in fact, agrees that the emails are all protected by privilege. Should there be any conflict, the parties will jointly call Chambers to resolve any disputes. 25
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merely that there was not specific probable cause to believe that the Lipsky Email Account would contain evidence, fruits, and instrumentalities of Lipskys crimes. Lipskys claim is without foundation. As Judge Freeman correctly found in issuing the warrant, there was indeed sufficient probable cause to search the Lipsky Email Account. First, as set forth above, the Lipsky Email Affidavit described a hard copy of an email Lipsky sent on January 20, 2009 to a certain member of a laboratory services company which, common sense would suggest, was a Lipsky client. See Lipsky Email Affidavit at 21. That email, which was copied to the Olympian Email Account, attached a draft letter written in the voice of a public official (there were references to my district and the authors constituents). Special Agent Kelly explained that the letter was, in his view, prepared for Kruger to sign on behalf of the laboratory services company. Given that (1) Lipsky was charged with bribing Kruger by directing lobbying fees to the Olympian bank account for the benefit of Kruger, Turano and others in exchange for Kruger taking official acts to benefit Lipskys clients, (2) given that the January 20, 2009 email from the Lipsky Email Account attached a draft letter for Kruger to sign on behalf of what appeared to be a Lipsky client, and (3) given that, as Special Agent Kelly noted, during the duration of the wiretap investigation in this case, in numerous intercepted telephone calls, RICHARD LIPSKY and CARL KRUGER discussed LIPSKYs provision of written material to KRUGER for his use in support of the causes important to LIPSKYs clients, the January 20, 2009 email alone established probable cause to believe the Lipsky Email Account contained evidence, fruits, or instrumentalities of the charged crimes. Second, the Lipsky Email Affidavit described a number of phone calls intercepted during the wiretap investigation of Kruger, Lipsky, and others, in which Lipsky specifically discussed 26
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using email presumably the Lipsky Email Account in connection with his lobbying business. The Lipsky Email Affidavit identified and described four such calls in which Lipsky discussed using the Lipsky Email Account in connection with his lobbying business, including a call in which Jason Koppel, Krugers chief of staff, agreed to send Lipsky an email at the Lipsky Email Account. Lipsky argues in his motion that these calls do not relate to any purported criminal conduct, but he misses the point. What these calls establish is that Lipsky uses the Lipsky Email Account in connection with his lobbying business. Given that the calls establish the connection between the Lipsky Email Account and Lipskys lobbying business, and given that Lipskys lobbying business figures centrally in his scheme to bribe Kruger, these calls provide probable cause to believe Lipsky used the Lipsky Email Account in relation directly or indirectly to the bribery scheme. Third, the Lipsky Residence Affidavit which was incorporated by reference as Attachment B to the Lipsky Email Affidavit described three other instances in which Lipsky used the Lipsky Email Account in connection with Kruger and the official acts Kruger undertook to benefit Lipsky and Lipskys clients in exchange for bribes. The Lipsky Residence Affidavit provided that in a November 16, 2010 telephone call, Lipsky told Kruger that he sent a report related to his anti-Walmart campaign to Krugers chief of staff and to Senator John Sampson (whom Lipsky had asked Kruger to lobby on behalf of the issue). See Lipsky Residence Affidavit at 34. The reference to the use of email in this call is particularly significant, because the Complaint specifically describes the anti-Walmart campaign as one example of the way in which Kruger undertook official action to benefit Lipsky and Lipskys clients. Complaint 4748. 27
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The Lipsky Residence Affidavit also described a December 16, 2010 telephone call in which Kruger and Lipsky discussed various legislation, including a promise from Kruger that he would send a copy of a pending bill via email to Lipsky. See id., at 35. Paragraphs 34 through 42 of the Complaint describe legislation that Kruger acted on to benefit Lipskys clients at or around the same time as this call. Finally, the Lipsky Residence Affidavit described a January 12, 2011 telephone call, in which Kruger rebuked Lipsky for sending emails to Kruger through the email account used by a member of Krugers staff. See id., at 36. Lipsky defended his actions saying that he thought the particular email he sent was innocuous, but Kruger warned him that no e-mail is ever innocuous. Lipsky agreed to cease corresponding via email with Krugers office. Lipskys statements during this call and Krugers reaction to it provides powerful confirmation that Lipsky used email (and presumably the Lipsky Email Account, in particular) in furtherance of his corrupt relationship with Kruger. While Lipsky now argues this call suggests that the Lipsky Email Account would not contain any relevant emails, his argument is without merit. For one thing, this email suggests that Lipsky did use email in furtherance of his relationship with Kruger at least up until January 12, 2011. The above-described evidence clearly established probable cause to search the Lipsky Email Account. And to the extent Lipsky seeks to undermine the existence of probable cause by scrutinizing each email and attempting to explain their significance away, it is important to bear in mind what the Second Circuit said in United States v. Waker, 534 F.3d 168, 171 (2d Cir. 2008) (per curiam), namely, that affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion, and that courts should not 28
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invalidate a warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. See also Illinois v. Gates, 462 U.S. 213, 238 (1983) (explaining that a judicial officer issuing a warrant must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place); United States v. Singh, 390 F.3d 168, 182 (2d Cir. 2004) (a showing of a sufficient nexus between the alleged criminal activities and the premises to be searched does not require direct evidence, but rather, the analysis may be based on reasonable inference[s] from the facts presented based on common sense and experience.). In any event, because the agents relied on Judge Freemans authorization to search the Lipsky Email Account, the good faith exception described in United States v. Leon, 468 U.S. 897 (1984) applies and defeats any suppression motion here. See, e.g., United States v. Clark, 638 F.3d 89 (2d Cir. 2011) (reversing, on good faith exception grounds, a district courts decision to suppress evidence seized pursuant to a search warrant that was judicially authorized, but lacking in probable cause). 3. The Lipsky Email Warrant Was Not Overbroad and Even If It Were, Suppression Is Not Appropriate
Lipsky next makes an overbreadth challenge to the warrant authorizing a search of the Lipsky Email Account. Lipsky argues that the warrant was overbroad in light of the fact that: (a) the warrant did not include a temporal limitation; and (b) the warrant authorized search of all emails relating to Richard Lipsky and Richard Lipsky Associates, Inc. It bears noting at the outset that the FBI has completed its review of the approximately 8,000 non-privileged emails in the Lipsky Email Account. The FBI has advised that it has deemed well under 1,000 of those
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emails to be relevant and responsive to the search warrant and that none of the emails deemed relevant predates the start date of the charged conspiracy. Further, the FBI did not deem, as relevant, any email related to Richard Lipsky and Richard Lipsky Associates, Inc., because the FBI understood the warrant to require some connection to the other of the over 50 entities and individuals specifically identified in the Lipsky Email Affidavit. Lipskys argument for suppression is without merit. Although it would have been better practice for the warrant to have included a temporal limitation and to have clarified that not all Richard Lipsky and Richard Lipsky Associates, Inc. documents could be seized, the warrant itself was sufficiently particular. The warrant specifically identified, among other things, the place to be searched (the Lipsky Email Account); the crimes for which evidence was sought (bribery and money laundering, among others); and the sorts of emails that could be seized (emails relating to 55 specifically enumerated individuals and entities). Such information clearly enabled the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize. United States v. George, 975 F.2d 72, 75 (2d Cir.1992); see also United States v. Liu, 239 F.3d 138, 140 (2d Cir.2000) (A warrant must be sufficiently specific to permit the rational exercise of judgment ... in selecting what items to seize.) Even assuming that the warrant was overbroad to the extent that it failed to include a temporal limitation and permitted the agents to seize any email relating to Richard Lipsky and Richard Lipsky Associates, Inc., the good faith exception defeats any suppression of any emails. Here, the warrant was not so facially deficient so as to preclude a reasonable officers reliance on it and to justify the application of the exclusionary rule. Leon, 468 U.S. at 923. On 30
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the contrary, the warrant was sufficiently particular to enable reasonable reliance on it: among other things, the warrant identified the place to be searched (the Lipsky Email Account); the crimes for which evidence was sought (bribery and money laundering, among others); and the sorts of emails that could be seized (namely, the emails relating to 55 specifically enumerated individuals and entities). See United States v. Rosa, 626 F.3d 56, 65 (2d Cir. 2010) (holding that good faith exception applied and that evidence should not be excluded where the warrant was sufficiently particular). That the agents relied on Judge Freemans authorization in good faith is made crystal clear by their decision not to deem relevant any email sent or received prior to the beginning of the charged conspiracy as well as by their decision not to deem as relevant any and all emails relating to Richard Lipsky and Richard Lipsky Associates, Inc. And even if the warrant were overbroad and even if the good faith exception did not apply, Lipsky still would not be entitled to the relief he seeks. The proper remedy, under binding Second Circuit law, would be to suppress only those emails seized pursuant to the overbroad portion of the warrant the remedy would not be categorical suppression of all emails seized pursuant to the warrant. See, e.g., United States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (When a warrant is severed (or redacted) the constitutionally infirm portionusually for lack of particularity or probable causeis separated from the remainder and evidence seized pursuant to that portion is suppressed; evidence seized under the valid portion may be admitted). For all the above reasons, the motion to suppress emails seized from the Lipsky Email Account should be denied.
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POINT V Counts One, Two and Ten Are Not Multiplicitous Malinsky, joined by Kruger, Turano, and Lipsky, moves to dismiss Counts One, Two and Ten of the Indictment conspiracy to commit honest services fraud (Count One) and conspiracy to commit bribery and violate the Travel Act (Count Two) on the ground that these count charges multiple conspiracies. Specifically, the defendants argue that any conspiracy involving Kruger, Turano and Lipsky is separate and distinct from any conspiracy involving Kruger, Turano, and Malinsky. The Indictment on its face alleges a single conspiracy involving Kruger, Turano, Lipsky and Malinsky. As a result, under well-settled Second Circuit law, the question of whether there existed a single conspiracy as charged in the indictment, or instead multiple conspiracies that did not include the conspiracy alleged, is a question of fact for a properly instructed jury. United States v. Payne, 591 F.3d 46, 62 (2d Cir. 2010) (citation and quotation omitted); see also United States v. Berger, 224 F.3d 107, 114 (2d Cir.2000) ([w]hether the government's proof shows a single conspiracy or multiple conspiracies is a question of fact for a properly instructed jury); United States v. Vanwort, 887 F.2d 375, 383 (2d Cir. 1989) (holding that the question of [w]hether the evidence in a case establishes single or multiple conspiracies is a question of fact to be resolved by a properly instructed jury). Accordingly, courts in this Circuit have repeatedly denied motions to dismiss a count as duplicitous. United States v. Ohle, 678 F.Supp.2d 215, 222 (S.D.N.Y. 2010) (and noting that United States v. Nachamie, 101 F.Supp.2d 134, 153 (S.D.N.Y. 2000)). The Government is continuing to investigate the facts and circumstances of the conduct at 32
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issue in Counts One, Two and Ten of the Indictment. The Government will continue to evaluate whether (a) the proof establishes, beyond a reasonable doubt, the existence of one large conspiracy involving Kruger, Turano, Lipsky and Malinsky, or (b) the proof more readily supports charging Lipsky and Malinsky in separate conspiracies (each of which would involve Kruger and Turano). However, given that the Indictment currently charges Kruger, Turano, Lipsky and Malinsky as members of one conspiracy, and given that the question of whether the proof supports multiple conspiracies is a question ultimately to be resolved by the jury, the Government respectfully requests that the motion to dismiss Counts One, Two and Ten as multiplicitous be denied. POINT VI Counts Ten and Eleven Sufficiently Allege Money Laundering Conspiracies Malinsky, joined by Kruger, Lipsky, Turano, and Kalish, moves to dismiss the money laundering conspiracy counts in the Indictment, i.e., Counts Ten and Eleven. The defendants claim that the money laundering counts in the Indictment are defective because: (1) a violation of the money laundering statute Title 18, United States Code, Section 1956(a)(1)(B) requires proof that a defendant endeavored to conceal or disguise the nature, location, source, ownership or control of the proceeds of some prior completed crime; (2) a bribery offense is not actually completed until the bribe is actually paid; and (3) the alleged bribes in this case were actually paid in the first instance to the entity through which the Government alleges the defendants endeavored to launder the money, namely, Michael Turanos company, Olympian Strategic Development Corp. (Olympian). Because there were no bribery proceeds to launder prior to the time that payments were made to Olympian, the argument goes, the defendants could not be 33
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guilty of laundering unlawful proceeds by directing payments to Olympian. But as set forth in greater detail below, the motion to dismiss is without merit because it is predicated on an obfuscation of the actual charges and allegations in the Indictment as well as citations to wholly irrelevant legal authorities. First, the motion to dismiss Counts Ten and Eleven is based entirely on the claim that the Government must prove that the bribery offense was completed prior to the time that concealment of the proceeds occurred. But given the nature of the charges in Counts Ten and Eleven, the Government is required to prove nothing of the sort. The defendants are, after all, charged in Counts Ten and Eleven with conspiracy to commit money laundering. It is blackletter law that, to obtain a conspiracy conviction, the Government is required to prove simply (I) an agreement about the object of the conspiracy, (ii) specific intent to achieve that object, and (iii) an overt act in furtherance of the agreement. United States v. Wallace, 85 F.3d 1063, 1068 (2d Cir. 1996). The Government is not required to prove that any substantive crime has been committed, let alone completed. See, e.g., United States v. Wallach, 935 F.2d 445, 470 (2d Cir. 1991) (explaining that to establish the existence of a conspiracy the government need only establish the existence of an agreement and an overt act in furtherance of the agreement and noting that [w]hether the substantive crime itself is, or is likely to be, committed is irrelevant (quotation and citation omitted)). Indeed, the Second Circuit has made clear that the Government can obtain a conspiracy conviction even where the substantive crime never even could have been committed in the first place. See, e.g., United States v. Shellef, 507 F.3d 82, 105 (2d Cir. 2007) ([T]he illegality of [a conspiracy] does not depend upon the achievement of its goal and it therefore does not matter that the ends of the conspiracy were from the beginning 34
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unattainable. (quotation and citation omitted)). Here, the defendants motion to dismiss should be denied because the Government is not required to prove that any substantive bribery offense was completed prior to the time that payments were made to the Olympian bank account. Because Counts Ten and Eleven allege money laundering conspiracy, the Government is required to prove simply the existence of an agreement to commit money laundering and one overt act in furtherance of that conspiracy. Furthermore, the Government anticipates that at least one witness will testify that, in fact, when discussing a plan to bribe Kruger for official action, Kruger, in effect, agreed with him or her to commit bribery and then separately directed and the witness agreed that the bribes be paid, in the first instance, to the Olympian bank account controlled by Turano for the benefit of Kruger, Turano and others all to conceal and disguise the proceeds of the bribery scheme. Such sequential criminal agreements would support the money laundering conspiracies as charged. Those conspiracies, after all, track the statutory language of Title 18, United States Code, Section 1956(a)(1)(B) and 1956(h) and then specifically allege, in the to wit clause, that there was an agreement to conceal the bribery proceeds because Kruger directed that the corrupt payments he received from Lipsky and Malinsky [in Count Ten, and Kalish in Count Eleven] be made to bank accounts in corporate names established by Turano for the benefit of Kruger, Turano, and others. Indictment 36, 39. Second, even though the question of when a substantive bribery offense is completed has no relevance to the question of whether Counts Ten and Eleven allege facts sufficient to state the crime of money laundering conspiracy, it bears noting that even the defendants claim about substantive bribery law is wrong. 35
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With respect to violations of Title 18, United States Code, Section 666 which the defendants are charged with conspiring to violate in Counts Two and Four of the Indictment a bribery offense is complete upon the mere solicitation of a bribe or upon the mere offer of a bribe. As relevant to the instant claim, Title 18, United States Code, Section 666 imposes criminal liability on: (1) an agent of State government who corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more, 18 U.S.C. 666(a)(1)(B) (emphasis added); or (2) any person who corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of [a State government] ... in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more. 18 U.S.C. 666(a)(2)(emphasis added). The plain language of Section 666 makes clear that a completed offense occurs where an agent of State government simply solicits, demands or agrees to accept a bribe, or where someone offers or agrees to give a bribe to an agent of State government. A Section 666 bribery offense, in other words, can be completed before any bribe is actually paid. The payment, of course, is convincing evidence of such a solicitation or offer, and it is precisely those payments and the antecedent solicitations and offers that the defendants conspired to conceal. With respect to violations of the Travel Act predicated on violations of New York bribery law which the defendants also are charged with conspiring to violate in Counts Two and Four of the Indictment a bribery offense is complete upon the mere solicitation of a bribe or upon the 36
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mere offer of a bribe. In this case, the Travel Act violation is linked to the substantive crime of bribery under New York Penal Law 200.00 and 200.10. New York Penal Law 200.00 provides that a person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced. (Emphasis added). New York Penal Law 200.10 provides that a public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced. (Emphasis added.) As with Section 666, the plain language of New York bribery law makes clear that a completed offense occurs where someone offers or agrees to confer a bribe on a public servant or where a public servant solicits or agrees to accept a bribe. A violation of New York bribery law, in other words, can be completed before any bribe is actually paid. Given that Counts Ten and Eleven allege money laundering conspiracies that require no proof of any completed prior crime, given that Counts Ten and Eleven refer, in any event, to proceeds generated by the bribery conspiracies charged in Counts One through Four bribery conspiracies that were completed when an agreement and overt act had occurred, and given that even substantive bribery offenses can be completed before any payments are made, the defendants motion to dismiss Counts Ten and Eleven should be denied.
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POINT VII The Allegations in the Indictment Are Sufficient Aquino, joined by Kruger, Lipsky, Malinsky, Kalish, Turano, and Boyland moves to dismiss the Indictment on the ground that the Indictment fails to plead essential facts. Specifically, they contend that: (1) the First Amendment somehow imposes a higher pleading requirement for bribery cases involving public officials; (2) the Indictment fails to specifically explain the pro in the alleged quid pro quo bribery schemes; and (3) the Indictment fails to allege that the bribe payments were not for bona fide fees or other compensation paid or reimbursed in the usual course of business. This motion is without merit, as the Indictment satisfies the requirements of Rule 7, provides adequate notice, and is not required to include any more particularized allegations under any binding authority in this Circuit. 1. The First Amendment Imposes No Additional Pleading Requirements
Relying principally on two of the Supreme Courts recent campaign finance decisions Citizens United v. Federal Election Commission, 130 S. Ct. 876, 909 (2010) and McConnell v. Federal Election Commission, 540 U.S. 93, 274 (2003) the defendants claim that the Indictment charges activity within the ambit of the First Amendment. According to the defendants, Citizens United and McConnell make plain that a quid and a quo are almost always present in legitimate political activity and that only an explicit agreement to trade the two transforms praiseworthy representative governing into a federal crime. Memorandum of Law In Support of Defendant Robert J. Aquinos Pre-Trial Motions (Aquino Motion) at 10. As a result, the defendants assert, the First Amendment requires greater particularity than this Indictment provides. 38
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The defendants claim is meritless. First, the defendants do not cite a single authority for the proposition that the First Amendment establishes a higher pleading requirement in bribery cases. Indeed, they do not cite a single authority for the proposition that the First Amendment demands more particularized pleadings even in bribery cases involving campaign contributions. That is with good reason. The Government is unaware of a single authority that supports the defendants novel demand for pleading with greater particularity in the bribery context. Second, while the defendants contend that an explicit quid pro quo agreement transforms legitimate First Amendment political activity into a crime and that heightened pleading requirements accordingly apply to bribery indictments, this argument is simply incorrect as a matter of law. To be sure, the Supreme Court has held that, in the campaign finance context, the Government must prove the existence of an explicit quid pro quo agreement. See McCormick v. United States, 500 U.S. 257, 273 (1991) (holding that campaign contributions can amount to Hobbs Act bribes but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act (emphasis added). However, the Second Circuit has rejected the argument that the Government must prove the existence of an explicit quid pro quo agreement outside the campaign finance context. See, e.g., United States v. Ganim, 510 F.3d 134, 145 (2d Cir. 2007) (it is sufficient if the public official understands that he or she is expected as a result of the payment to exercise particular kinds of influencei.e., on behalf of the payoras specific opportunities arise (citing United States v. Coyne, 4 F.3d 100, 114 (2d Cir.1993)); see also United States v. Garcia, 992 F.2d 409 (2d Cir.1993) (explaining that Evans v. United States, 504 U.S. 255 (1992) modified [the 39
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McCormick] standard in non-campaign contribution cases). And notably, neither the Supreme Court in McCormick nor the Second Circuit in any case has suggested that heightened pleading requirements apply to campaign finance-related bribery, let alone bribery outside the campaign finance context. Third, even the defendants reading of Citizens United is flawed. The defendants contend that Citizens United established that an arrangement in which there is a benefit conferred, an expectation of responsiveness, and the officials speech on behalf of the giver is a constitutionally protected activity. Aquino Motion at 22. Citizens United stands for no such proposition and in fact repudiates it. The law under review in that case imposed, among other things, a ban on corporate expenditures made totally independent of any candidate coordination. See Citizens United, 130 S. Ct. at 887, 910-911 ([T]his case, however, is about independent expenditures.). The Supreme Court struck down that ban as an unconstitutional infringement on protected political speech. Id., at 913. In doing so, the Court noted that concern about quid pro quo corruption could not justify the measure because the expenditures at issue were wholly independent of any candidate. Id., at 908 (The absence of prearrangement and coordination of an expenditure with the candidate ... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. ). The decision left no question, however, that the governmental interest in preventing quid pro quo corruption or the appearance of quid pro quo corruption. Id., at 909. Furthermore, far from vaunting arrangements where politicians provide aid in response to a private benefit that someone has conferred on them, the Constitution permits Congress to ban exactly that. Many legislatures have passed laws that restrict precisely such arrangements, 40
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including legislative recusal laws that require legislators to abstain from participating in legislative matters because of private business relationships. See Nev. Comm'n on Ethics v. Carrigan, 131 S. Ct. 2343, 2348-2350 (2011). And in any event, the law is clear that the First Amendment offers no sanctuary for bribery. United States v. Myers, 692 F.2d 823, 845 (2d Cir. 1982) (rejecting untenable First Amendment challenge to a bribery conviction because [i]t is taking the bribe, not performance of the illicit compact, that is a criminal act.) (quotation marks omitted); United States v. Brewer, 408 U.S. 501, 526 (1972) (rejecting Speech and Debate Clause challenge to a bribery charge because taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act.). 2. The Indictment Sufficiently Pleads Quid Pro Quo Bribery
The defendants next contend that the Indictment should have pled quid pro quo bribery with greater particularity. This contention, too, is without merit. Rule 7(c) of the Federal Rules of Criminal Procedure sets forth the minimal notice pleading standards that apply to indictments. It is well-settled that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974); see also Fed. R. Crim. P. 7(c) (requiring that an indictment contain a plain, concise and definite written statement of the essential facts constituting the offense charged). For decades, the Second Circuit has repeatedly held that to satisfy the requisite notice requirements and the requirements of Rule 7(c), an indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him . . . state time and 41
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place in approximate terms. United States v. Flaharty, 295 F.3d 182, 198 (2d Cir. 2002) (quotation and citation omitted) (holding that the indictment at issue sufficiently charged an offense because it closely tracked the relevant statutory language); see also United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008) (quoting Flaharty); United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998) (noting that [i]t is well settled that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense and further reiterating that an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime) (quotations and citations omitted); United States v. Citron, 783 F.2d 307, 314 (2d Cir. 1986) ([w]here . . . an indictment tracks the statutory language and specifies the nature of the criminal activity . . . it is sufficiently specific to withstand a motion to dismiss) (quotation and citation omitted). All counts of the Indictment easily meets this standard. All counts of the Indictment track the statutory language; they provide allegations concerning the time and place of the offense; and they include detailed to wit clauses that make plain the nature of the core bribery and money laundering allegations. To the extent the defendants argue, with respect to the bribery charges, that there are no facts pleaded as to the circumstances of the exchange, Aquino Motion at 6, the argument is without merit. The Indictment specifically describes what the bribers provided to Kruger, and what Kruger provided in exchange for the payments (official acts). Other Government filings provide notice well beyond anything required by Rule 7. Among other things, the defendants have the benefit of: (1) an incredibly detailed 53-page Complaint, one 42
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which makes lengthy allegations against each of the defendants; (2) a September 1, 2011 list of official acts on which the Government presently intends to rely at trial (which list the Government will continue to supplement); and (3) voluminous and extensive discovery. Cf. United States v. Collazo, No. 04 Cr. 297 (DAB), 2004 WL 2997843 (S.D.N.Y. Dec. 22, 2004) (holding that the indictment in a narcotics case was sufficient because it lays out all the elements of the charged offense as well as approximate statements of time and place and noting that the indictment, coupled with other factual detail provided to the defendant, satisfied concerns of notice to the Defendant and his ability to make an adequate defense). The defendant rely two classes of decisions - namely, threat and material support cases - to buttress their claim that so-called First Amendment concerns require greater pleading specificity. Analysis of those cases, however, reveal that they turn on particularities of the crimes charged and hold little relevance for bribery cases. In threat cases, for example: the offense depends crucially upon a specific identification of what the defendants each said or did that constituted the course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment and intimidation that was done intentionally to place a person in reasonable fear of death or serious bodily injury to himself, a member of his family, spouse or intimate partner. United States v. Buddenburg, CR-09-00264 (RMW), 2010 WL 2735547, at *8. So in Buddenburg, for example, the Indictment charged that the defendant made threats over a ten month period and in a broad geographic region without any detail: No specific dates are given. No target person is identified. No specific threat, act of vandalism, property damage, criminal trespass, harassment, or act of intimidation is identified. Id. Without such additional detail, the District Court concluded that the Indictment left the defendants [uninformed] of the specific offense conduct with which they are charged. Id., at *9. 43
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By contrast, the Indictment in this case alleges specific quid pro quo exchanges and the Indictment, coupled with the particular official acts described in the Governments September 1, 2011 letter, provide specific notice as to the details most salient to the quid pro quo exchange. Nor is United States v. Awan, the material support case by the defendants, apposite. The requirement of greater particularity in that case arose as to certain counts because the statute in question uses generic terms to categorize a variety of different activities each proscribed in the statute; in that case, it is not sufficient that the indictment shall charge the [offense] in the same generic terms as in the definition; but it . . . must descend to particulars. United States v. Awan, 459 F. Supp. 2d. 175 (E.D.N.Y. 2006). The District Court found no similar issue with respect to a third count which contained no generic statutory term encompassing a list of possible criminal acts left unspecified in the indictment. Id., at 176. Again, here, the Indictment coupled with the particular official acts described in the Governments September 1, 2011 letter, does descend to particulars. 3. The Indictment Adequately Alleges That the Corrupt Payments Were Not For Bona Fide Services
The defendants also claim that the Indictment is insufficient because it fails to allege that the payments the Government characterizes as bribes were not bona fide ... fees, or other compensation paid or reimbursed, in the usual course of business. The defendants cite, among other things, allegations in the Complaint providing that the bribes were bundled with payments for what might appear to be the provision of otherwise legitimate business matters. The defendants therefore argue that the Indictment is ambiguous as to whether the payments were made to influence Kruger or in exchange for bona fide services.
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In determining whether a count of an indictment sufficiently alleges an offense, the count should be read in its entirety. United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992). Moreover, an indictment must be read to include facts which are necessarily implied by the specific allegations made. United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (internal quotation marks and citation omitted). In reading an indictment, common sense and reason prevail over technicalities. United States v. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001). An indictment does not have to set forth evidence explaining how the crime was committed or negating every defense. Because the indictments purpose is to fairly inform[ ] a defendant of the charge against which he must defend, Alfonso, 143 F.3d at 776 (quoting Hamling, 418 U.S. at 117), the Second Circuit has repeatedly refused, in the absence of any showing of prejudice, to dismiss charges for lack of specificity. United States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (internal quotation marks and citation omitted). The Indictment here alleges that Lipsky, Malinsky, Kalish and Aquino bribed Kruger in exchange for his official action as opportunities arose. The Indictment plainly alleges that all payments made for Krugers benefit in exchange for this official action were corrupt bribes, an allegation that plainly forecloses the possibility that the payments were for any bona fide services. The Indictment need not explicitly reject every possible defense, by explicitly rejecting, for example, Aquinos false description of those as payments for radiology services rather than bribes. The allegations currently set forth meet the goals and purposes of the Rule 7 pleading requirements. While Section 666(c) provides a defense and statutory exception for bona fide salary, wages, fees, or other compensation against a bribery charge under section 666(a), there is no 45
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requirement in this Circuit that the Government affirmatively plead that a payment characterized in the Indictment as a bribe is not, at the same time, a bona fide fee for service. Though the Sixth Circuit appears to take a contrary view, see United States v. Mills, 140 F.3d 630 (6th Cir. 1998) and United States v. Mann, 1999 WL 17647 (6th Cir. 1999), those decisions are not binding in this Circuit. Furthermore, other courts have expressly rejected the notion that an Indictment must specifically allege that payments are not bona fide fees or salary under Section 666(c). See United States v. Lupton, 07-CR-219, 2007 WL 4303714, at *7 (E.D. Wis. 2007) (holding that an indictment did not have to allege the inapplicability of Section 666(c) and noting that [i]n any event, read in a common-sense manner, the indictment clearly conveys the notion that the kickback defendant solicited was not bona fide income). Such a position is consistent both with the common-sense approach the Second Circuit takes to construction of indictments, United States v. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001) (holding that, in reading an indictment, common sense and reason prevail over technicalities), as well as with the variety of courts holding that Section 666(c) articulates a defense and statutory exception for bona fide salary, wages, fees, or other compensation against a bribery charge under section 666(a). See, e.g., United States v. Schmitz, 634 F.3d 1247, 1264 n13 (11th Cir. 1011); United States v. McNair, 605 F.3d 1152, 1192 (11th Cir. 2010); United States v. Dwyer, 238 Fed. Appx. 631, 647 (1st Cir. 2007); United States v. Freeman, 86 Fed. Appx 35, 41 (6th Cir. 2003). Accordingly, the Government need not specifically allege the inapplicability of the Section 666(c) exception. In any event, there is no reason to dismiss the Section 666 object of Counts Two and Four here, given the Second Circuits long-standing position that an indictment should not be dismissed for lack of specificity absent a showing of prejudice. See, e.g., United States v. Adelson, 2007 WL 46
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2389681 (2d Cir. 2007) (affirming Your Honors decision not to dismiss charges and explaining our court has repeatedly refused, in the absence of any showing of prejudice, to dismiss ... charges for lack of specificity (citation and quotation omitted)). In any event, even if the Court determined that the Section 666 objects of the Indictment must specify allege that the payments were not made for bona fide services an allegation made plain by the characterization of the payments as bribes the defect has not prejudiced the defendants, the defect can be cured by particulars and, above all, the defect can be cured by dismissal of the Section 666 object of Counts Two and Four without prejudice so that the Government can represent this specific charges as part of a superseding Indictment. POINT VIII The Statutes Charged in the Indictment Are Not Unconstitutionally Vague Or Overbroad Aquino, joined by Kruger, Lipsky, Malinsky, Kalish, Turano, and Boyland, based on the same misreading of Citizens United that the Government discusses above, further argues that the charges against the defendants are vague and overbroad, both as applied and on their face. They argue that a person of common intelligence could not distinguish between, on the one hand, voting for a candidate or contributing to the candidates campaign in the hope that he will support certain policies with, on the other hand, providing a private financial benefit to a politician in exchange for such support as opportunities arise. Aquino Motion at 19-20. Given the long-standing prohibition on bribery, it is no surprise that such a challenge to the statute has been rejected repeatedly. Indeed, the defendants challenge to the facial validity of statutes charging honest services quid pro quo bribery was squarely reviewed and rejected by the Supreme Court in Skilling v. United States, a decision that Aquino puzzlingly omits from his 47
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analysis of the question. In United States v. Skilling, the Supreme Court held that Section 1346, when confined to schemes involving the payment of bribes and kickbacks, is not unconstitutionally vague. 130 S. Ct. 2896, 2928 (2010) (A prohibition on fraudulently depriving another of ones honest services by accepting bribes or kickbacks presents neither a fair-notice nor an arbitrary-prosecution problem.); United States v. Bryant, F.3d , 2011 WL 3715811, at *5 (3rd Cir. Aug. 25, 2011) (specifically reaffirming the viability of stream-ofbenefits honest services fraud bribery schemes post-Skilling). Given that the defendants argument is premised on (1) a strange misapplication and misreading of Citizens United, a decision that is wholly irrelevant to this case, and (2) the Supreme Courts rejection of their claim in Skilling, the Court should reject the defendants attacks on the constitutionality of the bribery charges in the Indictment. POINT IX The Defendants Motion for Brady Material Are Moot and/or Meritless . Aquino and Turano have requested an order requiring the Government to disclose Brady
material. Pursuant to the Due Process Clause of the United States Constitution, the Government has a duty to disclose favorable evidence to the accused where such evidence is material either to guilt or to punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Favorable evidence includes evidence that tends to exculpate the accused, see id., as well as evidence that is useful to impeach the credibility of a Government witness. See Giglio v. United States, 405 U.S. 150, 154 (1972). As the Court of Appeals has explained, Brady and Giglio material must be provided by the Government in time for its effective use at trial. In re United States (United States v.
48
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Coppa), 267 F.3d 132, 146 (2d Cir. 2001); see also id. (the prosecutor must disclose . . . exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made). The Government has already produced material that arguably could be construed as Brady material, the Government is as the Government stated in its discovery letter to the defendants on April 15, 2011 aware of its continuing obligation to disclose material pursuant to Brady and its progeny, and the Government will produce such material as soon as the Government learns of its existence.5 Because the Government has made a good-faith representation to the Court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady and its progeny including Kyles v. Whitley, 514 U.S. 419 (1995), a case cited by the defendant in his motion the defendants request for Brady material should be denied. See, e.g., United States v. Gallo, No. 98 Cr. 338 (JGK), 1999 WL 9848, at *8 (S.D.N.Y. Jan. 11, 1999) (denying defendant's motion to compel production of Brady material based on Governments representations that it is aware of its obligations under Brady . . . and will produce any Brady material to the defense well before trial); United States v. Yu, No. 97 CR 102 (SJ), 1998 WL 57079, at *4-*5 (E.D.N.Y. Feb. 5, 1998) (denying defense request that Government provide early disclosure of Brady material because Government acknowledged its
The Government has also spoken with defense counsel since its receipt of the pending motion. The Government has committed to providing Jencks Act material far enough in advance of trial to permit their effective use of trial. The Government has also indicated its intention to provide copies of interview notes and memorandum for all witnesses who were interviewed by the Government even where those witnesses are not being called. In advance of the trial in United States v. David Rosen, and in exchange for certain stipulations, the Government agreed to provide those materials one month prior to the start of trial. 49
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continuing obligation to provide exculpatory material upon its discovery and assured that it would comply with that obligation); United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996) (same). POINT X Any Renewed Motion for Severance Is Meritless Lipsky and Malinsky renew their motion for severance of Counts One and Two of the Indictment from Counts Three and Four of the Indictment.6 The defendant advance no new arguments in support of their motion, except to suggest that the evidence adduced at the Rosen trial somehow further clarifies the lack of connection between Counts One and Two, on the one hand, and Counts Three and Four, on the other. The two sets of counts share two common defendants (Kruger and Turano), and virtually identical fact patterns individuals paying bribes to Kruger in the form of phony consultant fees to Turano. Further, the Second Circuit has repeatedly held that a defendant charged in one conspiracy may properly be tried with a defendant charged in a separate conspiracy where there is a common participant linking the two and the two conspiracies share similar overarching goals. See, e.g., United States v. Feyrer, 333 F.3d 110, 114 (2d Cir. 2003); United States v. Rittweger, 524 F.3d 171, 177 (2d Cir. 2008). For these reasons, in the interests of judicial economy, and for all the other reasons set forth in the Governments May 5, 2011 brief (whose reasoning is incorporated herein), joinder is proper
Because Kalish recently indicated an attention to file a revised affidavit in connection with his motion for severance under United States v. Finkelstein, 526 F.2d 517 (2d Cir. 1975) a motion joined by Kruger, Turano, and Aquino the parties jointly requested that Kalish be permitted to have until Friday, September 30, 2011 to file his revised affidavit, and that the Government have until Wednesday, October 5, 2011 to file its response to the severance motion. The Court granted this request yesterday. 50
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under Rule 8(b) and Rule 14 of the Federal Rules of Criminal Procedure, and the defendants motion for severance should be denied.
CONCLUSION For all the above reasons, the Government respectfully requests that the defendants pretrial motions be denied in their entirety.
Dated: New York, New York September 30, 2011 Respectfully submitted, PREET BHARARA United States Attorney Southern District of New York
By:
____________/s/______________________________ Glen McGorty/William Harrington/Michael Bosworth Assistant United States Attorneys (212) 637-2505/2331/1079
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CERTIFICATE OF SERVICE On September 30, 2011, I served one copy of the Governments Response to the Defendants Pre-Trial Motions by electronic mail on the following:
Benjamin Brafman, Esq. Counsel for Carl Kruger Brafman & Associates, P.C. 767 Third Avenue, 26th Floor New York, NY 10017 (212) 750-7800/(212) 750-3906 (fax) Andrew Lawler, Esq. Counsel for Aaron Malinsky Andrew M. Lawler, P.C 641 Lexington Avenue, 27th Floor New York, NY 10022 (212)832-3160/(212)832-3158 (fax) Richard H. Rosenberg, Esq. Counsel for W illiam Boyland, Jr. 217 Broadway, Suite 707 New York, NY 10007 (212) 586-3838/(212) 962-5037 (fax) Peter Pope, Esq./Andrew Weissmann, Esq. Counsel for Robert Aquino Jenner & Block LLP (NYC) 919 Third Avenue, 37th Floor New York, NY 10022 (212) 891-1650/1605/(212) 891-1699 (fax)
Gerald B. Lefcourt, Esq. Counsel for Richard Lipsky Gerald B. Lefcourt, P.C. 148 E. 78th Street New York, New York 10075 212-737-0400/212-988-6192 (fax) Robert Katzberg, Esq. Counsel for Michael Turano Kaplan & Katzberg 767 Third Avenue, 26th Floor New York, NY 10017 (212) 750-3100/(212) 750 8628 (fax) Adrian L. Diluzio, Esq. Counsel for Solomon Kalish Law Firm of Adrian L. Diluzio 200 Old Country Rd., Suite 590 Mineola, NY 11501 (516) 248-8930/(516) 248-8281 (fax)
I declare under penalty of perjury that the foregoing is true and correct. 28 U.S.C. 1746. Dated: New York, New York September 30, 2011
_______________/s/______________________________ Glen G. McGorty/William J. Harrington/Michael Bosworth Assistant United States Attorneys (212) 637-2505/2331/1079
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S1 11 Cr. 300 (JSR)

THE UNITED STATES OF AMERICAS RESPONSE TO THE DEFENDANTS PRETRIAL MOTIONS

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