harvey smith[1]

8/8/2019 Harvey Smith[1]

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WILLIS & YOUNG, P.C.921 Bergen Avenue, Suite 525Jersey City, New Jersey 07306(201)-659-2090Attorney for the Defendant, L. HARVEY SMITH

______________________________________________________________________

UNITED STATES OF AMERICA,

Plaintiff,

vs.

L. HARVEY SMITH,

Defendant,

_________________________________

::::::::::::::::::::::::

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

CR. NO: 10-83

CRIMINAL ACTION

NOTICE OF MOTION TO DISMISSINDICTMENT

TO: CLERKUS District Court50 Walnut StreetNewark, NJ 07102

SIR/MADAM:

PLEASE TAKE NOTICE that the undersigned Attorney for the

Defendant, L. Harvey Smith, hereby moves, before the United States

District Court of New Jersey, for an Order:

1) Dismissing all Hobbs Act extortion counts in theIndictment;

2) Dismissing the Federal Program Bribery Charge under 18U.S.C. 666;

3) Granting an evidentiary hearing on his entrapmentdefense or, alternatively, permit him to explore on

cross-examination at trial all areas related to hisentrapment defense;

4) Dismissing the indictment on Due Process grounds basedon the Governments outrageous misconduct;

5) Granting discovery and an evidentiary hearing regardingthe grand jurys investigation of this case;

Case 2:10-cr-00083-JLL Document 30 Filed 09/09/10 Page 1 of 4 PageID: 70


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6) Granting a bill of particulars;7) Compelling the Government to produce at this time

discovery materials under Rule 16, 404(b) evidence,trial exhibits, Brady/Giglio evidence, and all Jencks

materials;

8) Compelling the Government to provide a list of all co-conspirator statements that will be introduced in theircase-in-chief and scheduling a James hearing, aminimization hearing, and a hearing to determine theauthenticity and admissibility of the recordedconversations;

9) Compelling the Government to provide additionaldiscovery, including but not limited to the most recentand updated version of the Department of Justicesguidelines regarding the use of confidential informants

and/or any other official guidelines that governed theresponsibilities and/or obligations between theGovernment and Solomon Dwek, in his capacity ascooperating witness; and

10) Permitting L. Harvey Smith to file additional motionsas necessary.

__/s/ Peter R. Willis_PETER R. WILLIS, ESQ.Attorney for Defendant

DATED: September 8, 2010



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WILLIS & YOUNG, P.C.921 Bergen Avenue, Suite 525Jersey City, New Jersey 07306(201)-659-2090Attorney for the Defendant, L. HARVEY SMITH

________________________________________________________________________


Plaintiff,

vs.

L. HARVEY SMITH,

Defendant,

___________________________________

::::::::::::::::::::::::

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

CR. NO. 10-83

CRIMINAL ACTION

ATTORNEY CERTIFICATION

PETER R. WILLIS, ESQ., an attorney at law of the State of New

Jersey, with offices located at 921 Bergen Avenue, Suite 525, Jersey

City, New Jersey 07306, hereby certifies the following:

1. I am the attorney of record in the above-captioned matter and amfamiliar with the facts of the case.

2. I have served this Motion, Certification, Proposed form of Orderand Brief upon Assistant United States Attorney Jenny Kramer.

3. I HEREBY CERTIFY that the foregoing statements made by me are trueto the best of my knowledge. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject

to punishment.

Respectfully submitted,

_/s/ Peter R. Willis______

PETER R. WILLIS, ESQ.ATTORNEY FOR THE DEFENDANTL. Harvey Smith

Dated: September 8, 2010



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WILLIS& YOUNG, P.C.921 Bergen Avenue, Suite 525Jersey City, New Jersey 07306(201) 659-2090Attorney for Defendant, L. HARVEY SMITH

________________________________________________________________________


Plaintiff,

vs.

L. HARVEY SMITH,

Defendant(s)_________________________________

::::::::::::::::::::::

UNITED STATES DISTRICT COURT,DISTRICT OF NEW JERSEY

CRIM. NO. 10-83

PROPOSED ORDER

THIS matter having been opened to the Court by Peter R. Willis, Esq.,

of Willis & Young, P.C. attorney for defendant L. Harvey Smith

requesting an Order Dismissing the Indictment and the United States

Attorney, by Jenny Kramer, Assistant United States Attorney, appearing

and for good cause shown,

IT IS on this day of September, 2010;

ORDERED that for the reasons set forth, Defendant L. Harvey Smiths

Motion is hereby Granted:

______________________________

HON. JOSE L. LINARES, USDJ



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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

INDICTMENT NO. 10-83

UNITED STATES OF AMERICA,: CRIMINAL ACTION

:

Plaintiff, :

:

:

:

L. HARVEY SMITH, :

:

Defendant :

:

BRIEF ON BEHALF OF DEFENDANT

L. HARVEY SMITH

Willis & Young

Peter R. Willis, Esq.

921 Bergen Avenue, Suite 525

Jersey City, NJ 07306

201-659-2090 (telephone)

201-659-1964 (fax)

On the Brief:

Peter R. Willis, Esq.

AnnMarie Harrison, Esq.

Case 2:10-cr-00083-JLL Document 30-1 Filed 09/09/10 Page 1 of 81 PageID: 74


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TABLE OF CONTENTS

TABLE OF AUTHORITIES --------------------------------------- 1

PRELIMINARY STATEMENT -------------------------------------- 4

PROCEDURAL HISTORY AND STATEMENT OF FACTS ------------------ 7

LEGAL ARGUMENT --------------------------------------------- 30

POINT ONE --------------------------------------------- 30

THE HOBBS ACT EXTORTION COUNTS SHOULD BE

DISMISSED BASED ON THE STATUTES PLAIN LANGUAGE

AND ITS VAGUENESS AS APPLIED TO SMITHS CASE.

POINT TWO --------------------------------------------- 41

THE SECTION 666 BRIBERY COUNT SHOULD BE

DISMISSED BECAUSE IT WAS NOT INTENDED TO APPLY

TO THE FACTS ALLEGED HERE AND REQUIRES PROOFS

THAT DO NOT EXIST IN THIS CASE.

POINT THREE ------------------------------------------- 45

ALTERNATIVELY, SMITHS ENTRAPMENT DEFENSE MUST

BE FLESHED OUT AT A PRETRIAL EVIDENTIARYHEARING OR, AT LEAST, RULED AN APPROPRIATE

TOPIC FOR BROAD CROSS-EXAMINATION

AT TRIAL.

POINT FOUR -------------------------------------------- 50

THE CONDUCT OF THE GOVERNMENT AND ITS AGENTS IS

SO OUTRAGEOUS THAT IT VIOLATES SMITHS

CONSTITUTIONAL DUE PROCESS RIGHTS.

POINT FIVE -------------------------------------------- 56

DISCOVERY AND AN EVIDENTIARY HEARING RELEVANT

TO THE GRAND JURY INVESTIGATION OF THIS CASE IS

NECESSARY TO EXAMINE THE PROPRIETY OF THE LEGAL

STANDARDS GIVEN



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TO THE JURORS

POINT SIX --------------------------------------------- 59

A BILL OF PARTICULARS IS NECESSARY TO ALLOW

SMITH TO DEFEND PROPERLY HIS CASE.

POINT SEVEN ------------------------------------------- 62

THE GOVERNMENT SHOULD RELEASE IMMEDIATELY TO

THE DEFENSE ALL DISCOVERY UNDER RULE 16.

POINT EIGHT ------------------------------------------- 64

THE GOVERNMENT SHOULD DESCRIBE IN ADVANCE THE

GENERAL NATURE OF ANY EVIDENCE OF OTHER CRIMES,

WRONGS, OR ACTS THAT IT INTENDS TO INTRODUCE AT

TRIAL UNDER RULE 404(B)

POINT NINE -------------------------------------------- 65

THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

BRADYAND GIGLIOMATERIALS.

POINT TEN --------------------------------------------- 66

THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

JENCKSMATERIALS

POINT ELEVEN ------------------------------------------ 67

THE GOVERNMENT SHOULD DESIGNATE ALL CO-

CONSPIRATOR STATEMENTS THAT WILL BE INTRODUCED

AT TRIAL AND THE COURT SHOULD HOLD THEAPPROPRIATE HEARINGS REGARDING USE

OF SUCH STATEMENTS.



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POINT TWELVE ------------------------------------------ 73

SMITH REQUESTS ADDITIONAL DISCOVERY TO AID IN

PREPARING HIS DEFENSE AND ENSURING HIS DUE

PROCESS AND FAIR TRIAL RIGHTS.

POINT THIRTEEN ---------------------------------------- 75

SMITH REQUESTS PERMISSION TO FILE ADDITIONAL

MOTIONS.

CONCLUSION ------------------------------------------------- 75



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Cases Page

Borden v. School Dist. of Tp. East Brunswick, 523

F.3d 153(3d Cir. 2008) ...........................................40Bouie v. City of Columbia, 378 U.S. 347 (1964) ......39

Bourjaily v. United States, 438 U.S. 171(1987) ......69

Brady v. Maryland, 373 U.S. 83 (1963) ................66

Butterworth v. Smith, 494 U.S. 624 (1990) ..........58

Carter v. Rafferty, 826 F.2d 1299(3d Cir. 1987), cert.

denied, 484 U.S. 1011 (1988)............................ 67

Douglas Oil Co. of California v. Petrol Stops

Northwest, 441 U.S. 211 (1979) ................................ 59

Evans v. United States, 504 U.S. 255 (1992) ........34

Giglio v. United States, 405 U.S. 150 (1972) ... 66,67

Greene v. United States, 454 F.2d 783 (9th Cir. 1971)..53

Hampton v. United States, 425 U.S. 484 (1976) ...47, 53

Kolender v. Lawson, 461 U.S. 352 (1983) ..............40

Pittsburgh Plate Glass v. United States, 360 U.S. 395

(1959) .................................................. 58

Posters 'W ' Things, Ltd. v. United States, 511 U.S.

513(1994)................................................................40

Scott v. United States, 436 U.S. 128(1978) ..........72

United States v. Addonizio, 451 F.2d 49(3d Cir. 1972)

.........................................................61

United States v. Ammar, 714 F.2d 238 (3d Cir. 1983).....70

United States v. Antico, 275 F.3d 245 (3rd Cir. 2001) ..34

United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) .. 72United States v. Bagley, 473 U.S. 667 (1985) ......... 67

United States v. Besmajian, 910 F.2d 1153 (3d Cir. 1990) 32

United States v. Bortnick, 2004 WL 3029731, *6 (E.D. Pa.

Dec. 30, 2004)....................................................59

United States v. Bryant, 556 F. Supp. 2d 378 (D.N.J. 2008)

...................................................... 37,32

United States v. Cicco, 938 F.2d 441 (3d Cir. 1991) ...44

United States v. Continental Group, Inc., 603 F.2d

444 (3d Cir. 1979)...............................................70

United States v. Delle Donna, 552 F. Supp. 475, 2008

WL 1961485, *5 (D.N.J. March 14, 2008).........................32United States v. Eufrasio, 935 F.2d 553 (3d Cir. 1991)...61

United States v. Evangelista, 813 F. Supp. 294 (D.N.J.

1993) ...................................................66

United States v. Fedroff, 874 F.2d 178 (3d Cir. 1989)

.................................................7, 48, 49

United States v. Higgs, 713 F.2d 39 (3d Cir. 1983) .67

United States v. Hodge, 211 F.3d 74 (3d Cir. 2000) .32



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United States v. Hull, 456 F.3d 133 (3d Cir. 2006) .72

United States v. James, 590 F.2d 575 (5th Cir. 1979)

........................................................69,70

United States v. Jannotti, 673 F.2d 578 (3d Cir.

1982),cert, denied, 457 U.S. 1106 (1982) .......... 48, 52

United States v. Kemp, 500 F.3d 257 (3d Cir. 2007) .. 32

United States v. Lanier, 520 U.S. 259 (1997) ........39

United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976).44

United States v. Mahoney, 495 F. Supp. 1270 (E.D. Pa.

1980)..................................................... 58

United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir.

1998)....................................................53

United States v. Pervez, 871 F.2d 310 (3d Cir. 1989)

......................................................... 47

United States v. Pitt, 193 F.3d 751 (3d Cir. 1999) .52

United States v. Reynoso-Ulloa, 548 F.2d 1329(9th Cir.

1977), cert, denied, 436 U.S. 926 (1978) ...................49

United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989) 61United States v. Russell, 411 U.S. 423 (1973) ......47

United States v. Starusko, 729 F.2d. 256 (3d Cir.

1984)....................................................67

United States v. Twersky, 1994 WL 319367, *4 (S.D.N.Y.

June 29, 1994).................................................... 59

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).

................................................... 52,53,55

United States v. Urban, 404 F.3d 754 (3d Cir. 2005),

cert. denied, 546 U.S. 1030 (2005)..........................61

United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) 52

United States v. Weaver, 267 F.3d 231 (3d Cir. 2001) ...... 68United States v. Wecht, 2007 WL 3125096, *5 (W.D. Pa. Oct.

24, 2007)................................................33

United States v. West, 511 F.2d 1083 (3d Cir. 1975) 53

United States v. Whittaker, 999 F.2d 38 (2d Cir. 1993)

....................................................... 41

Statutes

18 U.S.C. 1951(a) ...................................33, 40

18 U.S.C. 1951(b)(2) ....................................40

18 U.S.C. 2518(5) .......................................71

18 U.S.C. 2518(6) .......................................73

18 U.S.C. 3500(a) ....................................... 6818 U.S.C. 666(a)(1)(B) ..................................43

N.J.S.A. 52:13D-14 ........................................39

Other Authorities

Black's Law Dictionary 177 (8th ed. 2004) ....................61

N.J. Legis. Code of Ethics 2:3a.(2) (a)-(c) ..................36

N.J. Legis. Code of Ethics 2:2 ............................36

Ind. Ct. I ...........................................passim



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Ind. Ct. II ..........................................passim

Ind. Ct. Ill .........................................passim

Ind. Ct. IV ...........................................passim

Ind. Ct. V ............................................passim

Ind. Ct. VI ..........................................passim

Matt Dowling, "Cooperating witness Solomon Dwek emerges as

cornerstone of N.J. corruption sting," The Star-Ledger

(July 23, 2009) ..........................................54

Ted Sherman, "FBI informant Solomon Dwek has whirlwind N.J.

corruption tour," The Star-Ledger (Oct. 25, 2009) ....54

Rules

Fed. R. Crim. P. 6{e)(3)(E)(ii) ...........................59

Fed. R. Crim. P. 7(c)(1) ..................................32

Fed. R. Crim. P. 7{f) .....................................60

Fed. R. Crim. P. 16 (a) (1) (A) & (B) ...........................64

Fed. R. Evid. 404(b) ................................. 64,65

Fed. R. Evid. 801(d)(2)(E) ................................69

.



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Preliminary Statement

Long-time public servant and now former State

Assemblyman L. Harvey Smith (Harvey Smith) is one of

forty-four individuals arrested on July 23, 2009, as part

of Operation Bid Rig, a joint effort by the Federal Bureau

of Investigation, the Internal Revenue Service, and the

United States Attorney for the District of New Jersey.

Like many other high-level New Jersey elected officials

arrested that day, Smith was indicted ultimately on

political corruption charges, namely, for allegedly

accepting bribes from a Government informant in exchange

for his political assistance. And, like all of the others

arrested, a group that includes public servants, political

operatives, elected officials, candidates for office and

even orthodox rabbis, Smith must discredit Solomon Dwek, an

unscrupulous Government witness who sits at the core of the

Governments prosecution. Dwek is a disgraced member of

the Syrian Jewish community in Deal, New Jersey, who

relished an opportunity as a confidential witness as a way

to reduce his criminal exposure for orchestrating a $50

million bank fraud and laundering more than $22 million of

the fraudulent proceeds. Among other things, Dwek has

admitted to carrying out his criminal scheme by lying to,



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stealing from, cheating, and swindling dozens of investors,

including his own uncle.

None of this information, however, is novel. A number

of the defendants have appeared already before this Court.

Some have pleaded guilty. Some have elected a jury trial.

Some have begun serving sentences this Court has imposed.

Others are awaiting sentencing. But any comparisons among

the various prosecutions or defendants must end here; put

simply, Smith cannot be lumped in with the rest.

Critically, when the relevant proofs are put forward, the

evidence in this case will show beyond a reasonable doubt

that Smith never accepted any bribes from Dwek and lacked

the intent to commit the crimes charged. Smith never

offered to do anything illegal for Dwek or boasted about

his ability or desire to afford him preferential treatment.

Even if the Governments evidence demonstrates that Smith

offered to inquire about or support Dweks purported

development projects, this evidence establishes nothing

more than that Smith was performing his political duties.

Smith did not take any bribes.

Alternatively, even assuming that the evidence

supports a conclusion that, instead, Smith succumbed to

Dweks ruthless, take-no-prisoners tactics, the defense is

prepared to introduce compelling evidence that Smith was



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entrapped. More specifically, voluminous evidence will

demonstrate that Dwek, posing as David Esenbach and acting

as the Governments agent, preyed on Smith by initiating

the criminal activity he has been charged with and

ensnaring an inactive and unwilling participant. This

evidence will show further that, fueled by unabated greed,

Smiths long-time colleagues and once-trusted friends,

Jersey City Housing Authority Commissioner Edward Cheatam

and Democratic political consultant Jack Shaw, struck a

lucrative side-deal with Dwek. They profited for

successfully introducing Dwek to and setting up meetings

with political officials. For all intents and purposes,

they were Dweks de facto agents and participated in luring

Smith, who they knew had a sterling reputation and was, to

put it colloquially, straight as an arrow.

Yet, even taking the Indictment as true, the defense

gleans the impression that the Government is grasping for a

wink and a nod that Smith and Dwek never exchanged. This

is not a case where the accused promised Dwek that they

would help each other or that he would treat him as a

friend. This is not a case where the accused crowed about

preferential treatment for supporters versus non-

supporters. And, this is not a case where the accused

promised that Dweks projects would sit at the top of the



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pile or enjoy expedited handling. No, this is Harvey

Smiths case, and the evidence will speak for itself.

Procedural History & Statement of Facts1

Harvey Smith, a former teacher, served three terms as

a Jersey City councilman, during which he spent four years

as City Council President. He also served in the State

Senate from November 2003 though January 2004, sworn in to

fill the remainder of a resigned senators term. After

leaving the State Senate, Smith was appointed as an

Undersheriff of Hudson County. He took a leave as

Undersheriff to serve as Acting Mayor of Jersey City from

May 25, 2004 through November 11, 2004. He then returned

to that position. After winning an uncontested election in

November 2007, Smith served one term as a New Jersey

General Assemblyman from January 8, 2008 to January 10,

2010, as a representative of the 31st legislative district.2

To state the obvious, Smith has been a fixture in local and

State politics for many years.

1 The recitation here is based largely on a compilation of court documents, governmentpress releases, wiretap affidavits, audiotapes and videotapes, newspaper articles, onlinearticles, and other discovery materials.2 When his term expired in January 2010, Harvey Smith did not seek reelection.



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On July 23, 2009, Smith was arrested as part of

Operation Bid Rig and charged with knowingly and willfully

conspiring to commit extortion under color of official

right by accepting bribes, which violates 18 U.S.C.

1951(a)(2). Later, a grand jury indicted Smith on six

counts: (1) conspiracy to obstruct commerce by extortion

under color of official right (count one), which violates

18 U.S.C. 1951(a); (2) attempted obstruction of commerce

by extortion under color of official right (counts two and

three), which violates 18 U.S.C. 1951(a) and 2; (3)

acceptance of corrupt payments (counts four and five),

which violates 18 U.S.C. 666(a)(1)(B) and 2; and (4)

money laundering (count six), which violates 18 U.S.C.

1956(a)(1)(B)(i) and 2.

The Indictment names or describes four other

individuals allegedly involved in the conduct at the heart

of the case. Edward Cheatam, the Affirmative Action,

elected member of the Jersey City Board of Education and an

Officer for Hudson County and Commissioner on the Jersey

City Housing Authority3, is specifically identified. The

others are presumably Richard Greene, who was Smiths

acquaintance, Jack Shaw, a political consultant, and

3 Additionally, Cheatam was Deputy Mayor of Jersey City when Smith served as ActingMayor.



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Solomon Dwek (described as the CW), a convicted fraudster

and the Governments confidential witness. Working under

the alias David Esenbach, Dwek (for ease of reference, he

is hereinafter referred to throughout this brief as Dwek,

not Esenbach) held himself out to Smith and others as a

real estate developer interested in development in Jersey

City and surrounding areas.

Overall, the Indictment alleges that these individuals

conspired together to commit a number of offenses and Smith

reaped the benefits of this conspiracy. This is what the

Government says. What the Government does not say and has

not said in the context of any other related prosecution is

that, unbeknownst to Smith or any other similarly situated

individual, Dwek, Cheatam, and Shaw had formed their own

illicit agreement. Essentially, Cheatham and Shaw agreed

to act as snares in Dweks self-serving pursuit of

attempting to bribe politicians; every time Cheatam and

Shaw orchestrated a fruitful meeting between Dwek and a

local political figure, Dwek would pay them handsomely.

More specifically, if Dwek succeeded in getting an official

to accept a bribe, he would pay that same amount of money

to Shaw and Cheatam. So, controlled by their insatiable

appetites for cash, Cheatam and Shaw closed their eyes to

long-time personal and professional relationships and any



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sense of right from wrong. With Dwek as their proverbial

cash cow, they rolled up their sleeves and got to work

they hand-picked political figures to meet with Dwek,

established and maintained contact, and served as illicit

liaisons between Dwek and them.

The wiretap evidence reveals critical information

regarding the side-deal that Dwek struck with Cheatam and

Shaw. Significantly, too, ample evidence shows that

Cheatam and Shaw played, at times, fast and loose with

Dwek, lying that they gave money to targeted political

officials when, in fact, they hoarded it for themselves.

Crucial wiretap evidence includes, but is not limited to,

the following:

January 7, 2009 Cheatam agrees, per Dwek, to

rig the bidding process on a tile job for a school

development project. He agrees to rig the processin Dweks favor by disclosing to him if another

bidders price was cheaper and instructing him as

to whether he had to submit a lower bid. Cheatam

explains to Dwek that he would introduce him to

the right people and agrees that such people had

to be people that Cheatam and Dwek could trust.

(March 12, 2009 Affidavit of FBI Special Agent

Donald Russ).

January 7, 2009 Cheatam explains to Dwek that

he could arrange a meeting with Joseph Doriaregarding DCA inspections of Dweks various

properties. Cheatam agrees with Dwek that all

payments to Doria should be made through Cheatam.

Cheatam also explains that he would introduce him

to Shaw, who would further facilitate his corrupt

dealings with Doria.



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(March 12, 2009 Affidavit of FBI Special Agent

Donald Russ).

February 12, 2009 Shaw advises Dwek that Doria

and Shaw have been personal friends for thirty

years. Shaw agrees with Dwek to come on board

with him to expedite matters with the DCA,

including DCA approvals for Dweks real estate

development interests through Doria. In

exchange, Shaw agrees to accept from Dwek $10,000

to start and more and more as Dwek received

approvals. (March 12, 2009 Affidavit of FBI Special

Agent Donald Russ).

February 16, 2009 Cheatam agreed that Dwek

should provide Shaw with $10,000 for Doria and an

additional $10,000 each to Shaw and Cheatam for

their assistance with Doria. (March 12, 2009

Affidavit of FBI Special Agent Donald Russ).

February 17, 2009 Shaw and Dwek agree that

whatever sum of money Dwek gives him for Doria, he

will give him the same amount to keep. They agree

also that Shaw would accept from Dwek 10 and 10

two $10,000 cash payments: one for Shaw and one for

Doria.

Shaw thanked Dwek and stated that he hope that the

two had a long relationship that was good for

Dwek and good for us.(March 12, 2009 Affidavit of FBI Special Agent

Donald Russ; Feb. 17, 2009 Videotape).

March 20, 2009 Cheatam and Shaw agree to accept

$10,000 each from Dwek at an upcoming meeting:

$5,000 each for the Joe [Doria] thing and $5,000

each to convert for Healy. (March 31, 2009


March 20, 2009 - Shaw and Cheatam discuss how it

is refreshing to deal with someone like Dwek

and they wanted to keep the ball rolling. (April

2009 Affidavit of FBI Special Agent Donald Russ).

March 21, 2009 - Shaw and Cheatam discuss their

efforts to assist Dwek with his real estate



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development interests in Plainfield and Bayonne.

They confirm that meetings with two Jersey City

Council candidates have been set. They agree that

Dwek had been planting a lot of seeds with

various government officials in New Jersey. (April


March 24, 2009 Shaw and Jimmy King, candidate

for the Jersey City Council, discuss meeting with

Dwek. Shaw tells King, Do me a favor and turn on

the Irish charm about me so this guy [Dwek] thinks

hes getting what hes paying for. (April 2009


March 24, 2009 Shaw and Cheatam discuss their

plans for Dwek, agreeing: Lets get him to give

these three candidates [Lori Serrano, Lou Manzo,

and King] money, lets get him to buy the spaghetti

factory and lets get him to buy Orange. (April


March 25, 2009 Cheatam explains to Shaw that he

would tell each o of them [Serrano and Lavern

Washington] dont take anything from [Dwek] at all

until, you know, I want to make sure they go

through us. (April 2009 Affidavit of FBI Special

Agent Donald Russ).

March 30, 2009 Cheatam and Shaw discussscheduled meetings with Dwek, King, and Washington.

About King and Washington, Cheatam said, Lets

spread them out fifteen minutes difference, okay?

Shaw agreed and asked Cheatam, How are we

operating this? [King and Washington are coming

into the restaurant to see [Dwek]? Cheatam

responded, Yes they are coming in to see Dwek and

then whatever conversation you want and then

theyll leave. Shaw agreed and then asked Cheatam,

And then how are we dealing with the money?

Cheatam responded to Shaw that they would talk to[Dwek] about the money. (April 2009 Affidavit of

FBI Special Agent Donald Russ).

April 8, 2009 Cheatam and Shaw discuss the

political officials they have hand-picked to

introduce to Dwek, including but not limited to:

William Gaughan, King, Peter Brennan, Serrano,



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Washington, and Cammarano. They discuss the times

and meetings booked. (May 1, 2009 Affidavit of

FBI Special Agent Donald Russ).

April 14, 2009 Cheatam and Shaw discussed

Smith, who was then a candidate for Jersey City

Mayor. Cheatam noted that definitely, [Dweks]

gonna sit down with Harvey, too. (May 1, 2009


April 21, 2009 Cheatam and Shaw met with Dwek.

Shaw and Cheatam set forth the schedule and

identities of individuals with whom they would be

meeting as well as the amounts of money to be paid

to certain public officials. (May 1, 2009


April 22, 2009 Shaw asked, When are we doing

Harvey? Cheatam informs Shaw that the meeting is

set. They also discuss setting up a meeting with

Mayor Healy. Cheatam says, Whatever time hes

available, well, well bring [Dwek] on in and

knock it out. (April 2009 Affidavit of FBI Special

Agent Donald Russ).

May 21, 2009- Cheatam and Shaw discuss

confrontation with Dwek regarding Shaws account of

what Shaw had done with the payoffs that Dwek had

provided to him for Joe Doria. Dwek had pointed outto Cheatam that Shaw had initially told Dwek he

gave payoffs to Doria, but then later contradicted

himself when he said that he had given the money to

the President of St. Peters College at Dorias

direction to do so to benefit Dorias daughter.

Cheatam and Shaw then lie to each other as to the

stories they told Dwek in an effort to resolve

Shaws inconsistent statements.

(May 29, 2009 Affidavit of FBI Special Agent Sean

McCarthy)

June 5, 2009 Shaw and Cheatam discuss setting

up a meeting with the Mayor of Bayonne, Mark Smith.

Shaw said, Im just trying to get Dwek to buy

something so we can get paid. Cheatam responded,

Right? Absolutely. Thats what Im talking

about. (July 2009 Affidavit of FBI Special Agent

Sean McCarthy).



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June 7, 2009 Though Shaw and Cheatam suspect

Dwek may be an FBI informant, they continue to

cement their relationship with them. They say

everybody thinks he is an informant and ridicule

his development plans as amateurish and

bullshit. (June 7, 2009 Audiotape).

June 10, 2009 Shaw and Cheatam discuss their

desire to reap more money from Dwek. Likely

referring to compensation for Cheatam and himself,

Shaw then remarked that we gotta, we gotta figure

out some way to get some checks out of [Dwek],

prompting Cheatam to respond [y]es, absolutely.

Shaw added, [or] some money somewhere out of

[Dwek]. Cheatam then told Shaw that Ill make a

suggestion to [Dwek], eh, you know, make it

official. Im your consultant, youre just

funneling to me. (Dwek has paid Shaw and Cheatam

on numerous occasions, with Cheatam most recently

receiving $5,000 on June 2, 2009, for their

assistance in facilitating corrupt payments to

public officials, but they have never been hired by

Dwek as consultants.) Shaw then clarified to

Cheatam that I mean, and, and, and Im talking

about money for you and me. Both complained that

they were on a dry streak and that Dwek

spoiled them. Shaw added, yeah, and Ive been

working my ass off now more than I was before.Cheatam told Shaw that I want [Dwek] to see us

working so that we can, you know, pull down some

more. (June 26, 2009 Affidavit of FBI Special

Agent Sean McCarthy; June 10, 2009 Audiotape).

June 12, 2009 Cheatam tells Shaw that [Dwek]

is nothing more than a broker. Shaw agreed and

said that Shaw and Cheatam also were brokers.

Shaw continued, All we need is some money now.

Cheatam agreed, Thats all we need, thats all we

need, absolutely. Shaw said, You and I needsome cash. (July Affidavit of Special Agent Sean

McCarthy; June 12, 2009 Audiotape).

June 17, 2009 Cheatam and Shaw discuss moving

ahead on a particular project with Dwek. Shaw

states, Well, one of the things I want to know

out of this before I move ahead on other projects



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16

government matters. Ind., Ct. I, 2. The object of the

conspiracy was allegedly to accept and agree to accept

from Dwek such payments and contributions for the benefit

of defendant Smith in a concealed manner, through

intermediaries in exchange for Smiths official

assistance, action and influence. Ind., Ct. I, 3.

Indictments Allegations Regarding the

April 24, 2009 Meeting

The Government alleges that an April 24, 2009

restaurant meeting involving Smith, Cheatam, Shaw, and Dwek

is part of the conspiracy. Ind., Ct. I, 4(A). During

that meeting, Dwek discussed his interest in conducting a

development project on Garfield Avenue in Jersey City (the

Garfield Avenue Project). The Indictment reads:

Defendant Smith was further informed by [Dwek] that [Dwek]

was seeking help expediting an anticipated zoning change

with respect to the Garfield Avenue Project, and that

[Dwek] wanted to make sure that he had [D]efendant Smiths

support. Ind., Ct. I, 4(A).

While Smith briefly left the table, Cheatam told Dwek

to hand him any money intended for Smith: Give it to me

and Ill have to give it to [Defendant Smith]. [Defendant

Smith] wont take it himself . . . Dwek stated, oh so you



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17

gotta give it to him, he wont take it from me? According

to the Indictment, Cheatam represented to Dwek that Smith

understood that Dwek wanted him to assist with the Garfield

Avenue Project. Ind., Ct. I, 4(B).

When Smith returned to the table, Cheatam said:

[Dwek] . . . is a very generous person and he likes

working with people. Hes going to make a contribution to

your campaign [for Jersey City Mayor]. His only thing is

that his name is not connected to it, nor my name, nor

[Shaws] name. Hell give you something now and you make

the run-off and hell keep contributing to you, to your

success. Ind., Ct. I, 4(C). Dwek added that he would

give him $5,000 then, $5,000 after a run-off, and $5,000

post-election, provided that he did not use his name.

Smith told him, I can only put the name on the check that

is, who the checks coming from. Ind., Ct. I, 4(C).

Cheatam told him that there is no check. Smith told him,

I understand and thats going to be difficult for me to

deal with. Dwek responded, Deal with [Cheatam] on it.

Ind., Ct. 1, 4(C). According to the Indictment, Cheatam

indicated to Defendant Smith that they would use Smiths

associate, [Richard Greene], as an intermediary and that

Smiths associate would give the corrupt payment to

Defendant Smith. Ind., Ct. I, 4(C).



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What The Tapes Reveal Regarding the

April 24, 2009 Meeting

I dont do quid pro quo. Ed [Cheatam] will tell you

how I operate, Smith told Dwek in no uncertain terms.

(emphasis added). The tapes reveal that Smith had no

intent to take unlawfully anything from Dwek. In fact,

Smith never promised to do anything for Dwek that he would

not do for any other constituent. When Dwek asked for his

help in expediting his Garfield Avenue Project, Smith had

no comment. Though Cheatam and Dwek tried to scheme about

who owed Smith some favors, Smith disregarded this.

Instead, he explained to Dwek about some legislation that

might be useful.

Unbeknownst to Smith, Cheatam would not ever tell Dwek

how he only did honest business because Cheatam had turned

on him. Instead, Dwek and Cheatam continued scheming.

When Smith left the table that day, Dwek voiced his

concerns that Smith would not take any money from him.

Cheatam reassured him, stating he personally would accept

the money for Smith.

When Smith returned to the table, Cheatam tried to

convince him that Dwek was a very generous person who

would like to make a campaign contribution, provided that



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19

it was not linked to him personally. Smith was

disinterested: I can only put the name on the check that

is of who it is coming from. Responding to Dweks comment

You understand my French I dont want any conflicts,

Smith said: I understand but thats going to be difficult

for me to deal with.

Before leaving the meeting, Smiths parting words to

Dwek were: I dont do quid pro quo. Ed [Cheatam] will

tell you how I operate. When Smith left, Dwek, Cheatam,

and Shaw continued plotting:

Dwek: Is this guy going to help me out or what?

Cheatam: Hell help you.

Dwek: Hes tough.

Shaw: When he was the mayor he was the bestmayor we had in 30 years.

Dwek: The thing is he doesnt want no cash

How are we going to operate with this

guy.

Dwek: Maybe you can talk to him and straighten

him out.

Cheatam: If not I have people I can give the cash

to and they give him the checks.

Dwek: I dont do quid pro quo. Whats that

suppose[d] to mean?


April 30, 2009 Meeting & $5,000 Payment



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Next, the Government alleges that an April 30, 2009

restaurant meeting involving Smith, Smiths associate

[Greene], Cheatam, Shaw, and Dwek is also part of the

conspiracy. Ind., Ct. I, 4(D). The Indictment alleges

that before Smith arrived, Dwek and others discussed taking

care of business with Greene after they finished their

breakfast. Ind., Ct. I, 4(D). When Smith arrived, Dwek

said, I didnt know you were still on the Assembly. When

Smith responded affirmatively, Dwek said, I was telling

[Greene and Cheatam] that I might need something [from

you]. Smith interrupted Dwek, telling him: You gotta

stop talking like that, and Ill tell you why. Because we

are forging a relationship and whatever I can do to help

you, I will, and when you talk like that, it puts me . . .

. Ind., Ct. I, 4(F).

Dwek mentioned the Garfield Avenue Project and

indicated he needed information on the status of an

application in the New Jersey Department of Environmental

Protection (DEP) seeking a No Further Action Letter.

Ind., Ct. I, 4(F). In response, Smith told Dwek that he

would inquire as to the status of that Letter, stating: So

write down all the stuff you want. Ind., Ct. I, 4(F).

As everyone began to leave the table, Dwek said, So Ill



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21

get that DEP information, well get you a zone

application. Smith replied, All I need to know is what

the project is, if you give me the name of the project and

Ill find out the site so I can question . . . what the

status of the . . . clean up. Ind., Ct. I, 4(G).

In the parking lot outside of the restaurant, Dwek

questioned Smith as to whether he could do business that

day with Greene. Smith did not turn around or respond to

him, telling him moments later to stop talking. Ind.,

Ct. I, 4(H). Smith entered his car and prepared to

leave. Greene then accepted from Dwek an envelope

containing $5,000 cash. Ind., Ct. I, 4(I). Dwek said

that he told Smith that he was giving him $5,000 cash and

reminded Greene that he did not want his name listed

anywhere. He asked Greene, When he [Smith] says he will

help me expedite my [Garfield Avenue] application . . . I

can trust him? Greene and Cheatam acknowledged that Smith

would not forget Dwek. Ind., Ct. I, 4(I).

According to the Indictment, Greene entered the front

passenger side of Smiths car, holding the sealed envelope

from Dwek and giving it to Smith. Ind., Ct. I, 4(J).

The Government alleges that later that same day, on or

about April 30, 2009, Smith provided the $5,000 in cash to

Cheatam, who converted the cash into money orders and



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22

checks, which were deposited as campaign contributions for

Smiths candidacy for Jersey City Mayor. Ind., Ct. I,

4(K)-(N).

What The Tapes Reveal Regarding

the April 30, 2009 Meeting

Smith indicated that he would find out what the

status is regarding the Garfield Avenue Project. Because

the DEP was very busy, Smith told him, write down all the

stuff you need in resolving issues related to the Garfield

Avenue Project. Before leaving the meeting, Smith

reiterated: All I need is what the project is. Ed

[Cheatam] will give me the name of the project and Ill

find out the site so I can . . . find out what the status

is of the . . . clean up. When Dwek said, I might be on

the bottom of the pile I am told so if you can [do]

anything to expedite that I would appreciate it, Smith

walked away and ignored him.

After Smith left, Dwek approached Greene and handed

him an envelope. Lying to Greene to get him to

participate, Dwek says: I told Harvey this is $5,000.

But he never told Smith that there was any money in the

envelope. And Smith never told Dwek that he would expedite

anything. Feigning ignorance, however, Dwek asked, When



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23

he says hell help me with expediting my applications I can

trust him right? He wont forget my name and number will

he? Cheatam stated, No, adding Ill make sure of that.

Im about the closest thing to him.

When Smith learned that the envelope contained cash,

Smith immediately telephoned Cheatam and told him he was

returning the cash-filled envelope to him. Smith reiterated

to Cheatam that he would not accept a cash donation from

anyone, and Cheatam relayed this information to Shaw.


July 16, 2009 Meeting

On or about July 16, 2009, Smith, Cheatam, Shaw, and

Dwek met at a diner in Jersey City. Before Shaw arrived,

Smith, Cheatam, and Dwek discussed Dweks business

interests in Jersey City and Bayonne, including the

Garfield Avenue project and a proposed development on Route

440 in Bayonne (the Bayonne Project), and related issues

involving the DEP and the State of New Jersey Department of

Transportation (DOT). Ind., Ct. I, 4(O). When Shaw

arrived, Cheatam updated him on the groups conversation.

Smith then allegedly told Dwek, I need to just get a

little list of what youre trying to do, so that before I

go on vacation I can get the ball rolling. First of all, I



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can put in some calls to see where the DEP situation is.

Dwek said he would provide the information to Cheatam.

Smith said that he would also talk to the Chairman of the

DOT regarding the Bayonne Project. Ind., Ct. I, 4(O).

Regarding the Garfield Avenue Project, Smith asked

Dwek for the name listed on the DEP application. Dwek told

him that it was registered under Garfield Avenue

Associates LLC. When Smith asked for other information

regarding the Garfield Avenue Project, Dwek tried to change

the subject. Dwek said he was looking for a guy that can

help [him] out, told Smith he trust[ed] [him], and that

he was a generous guy. Smith commented jokingly,

According to your standards youre generous. Getting back

to what he believed was a legitimate topic of discussion,

Smith commented about the Garfield Avenue and Bayonne

Projects, stating: Im going to find out what he deal is

with this. Im gonna get on it as soon as we finish here.

Smith also indicated that he would inquire from a

particular State Assemblyman as to whether he was

interesting in handling Dweks DOT application for the

Bayonne Project and would try to put this in motion

immediately because Smith was preparing to leave for

vacation. Smith also confirmed that he would make inquiries

about the Garfield Avenue Project. Ind., Ct. I, 4(P).



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25

Later in the meeting, Smith offered advice to Dwek and

Cheatam regarding how to deal with a particular Jersey City

Councilwoman as to Dweks purported need for a zoning

change in Jersey City, stating: See, not only do you have

my connections, . . . you got my . . . knowledge. Shortly

after, Smith proceeded to leave the diner. According to the

Government, when Cheatam stood up to leave, Dwek told

Cheatam to inform Smith that he would give him $10,000

since Smith was not happy with his previous payment of

$5,000. It is alleged that Cheatam stepped away to

purportedly speak with Smith in private. It is alleged

further that, when he returned, Cheatam told Dwek that

Smith would take $10,000. Ind., Ct. I, 4(Q).



At the July 16 meeting, Smith sat down with Cheatam

and Dwek to talk about what he believed were legitimate

development projects, including the Garfield Avenue Project

and Bayonne Project. When Smith asked them what kind of

help they were looking for, Cheatam said that they needed

his support. In an effort to convince Smith, Dwek and

Cheatham discussed how Jersey City residents would benefit

from these Projects. They also represented that they had



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26

met with and had garnered support from the Mayor and the

Council President. When Dwek said that he needed help with

the DEP and on a related zoning issue, Smith had no

response.

As to the Bayonne Project, Smith told Dwek that he

needed to deal with the DOT if he needed assistance with

transportation matters. Smith told him that he wanted a

little list of what you are trying to do so that before I

go on vacation I can start the ball rolling. When Smith

gave him some advice as to how to deal with a particular

councilwoman on a zoning issue, he told Dwek: [N]ot only

do you have my connections but you also have my knowledge.

Smith left the meeting. Cheatam followed after Smith.

When Cheatam returned, he told Dwek that Smith would take

$10,000. The tape does not show Cheatam speaking privately

with Smith, let alone Smith telling Cheatam that he will

accept a $10,000 bribe.


July 17, 2009 Meeting & $10,000 Payment

On or about July 17, 2009, Smith, Cheatam, Shaw, and

Dwek met at a Hoboken diner. During this meeting, Smith

told Dwek that he had placed two phone calls the day

before. When Dwek commented youre a man of your word,



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27

Smith replied, I only do business one way. Smith began

to read over his notes with Dwek and talked to him about

his phone calls. As to the Garfield Avenue Project, Smith

said that someone agreed to update him on the status of the

DEP application by the end of the day. As to the Bayonne

Project, Smith had contacted the DOT Commissioner. Dwek

told Smith, I appreciate your support. Ind., Ct. I,

4(R). Additionally, Smith told Dwek that his fellow

Assemblyman, if needed, would contact the DOT to advise

them that he supported the project.

Smith met with Dwek that day to specifically update

him on the progress he had made regarding his Project

issues. Ind., Ct. I, 4(S).

All four individuals then left the diner. In the

parking lot, Dwek handed an envelope to Cheatam, who

followed Smith to his car, leaned in the open window, and

threw the envelope inside the car. The envelope contained

$10,000 cash. Dwek then approached Smiths car and said,

Harvey, I dont want you to call me a cheap skunk

anymore, then leaning inside the open window. Smith told

him, Hey, its not about that, its just about, -- its

just about the fact that Im a straight guy. Ind., Ct. I,

4(T).



36/85

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Smith told Dwek that he made two calls the day before

to follow-up on his inquiries. He told Dwek that he spoke

with the DOT Commissioner. When Smith left the table,

Cheatam commented, Hes a pain in the ass to deal with[,]

but hes a man of his word. When Smith returned, he told

Dwek that the Assemblyman would voice his support for the

Project, if his [Smiths] clout was not enough.

Shortly after, Smith got up from the table to leave

and Dwek followed him. Smith proceeded to his car. Dwek

and Cheatam proceeded to Dweks car. Dwek retrieved an

envelope from the trunk, handing it to Cheatam. Smith had

started his car and was backing up in the parking lot.

When Cheatam appeared next to his car, Smith stopped.

Cheatam tossed the envelope into Smiths front passenger

seat. Dwek then walked over to Smiths car, commenting:

Hey Harvey[,] I dont want you to call me a cheap skunk

anymore. Smith replied, Its not about that. Its just

about that Im a straight guy.

When Harvey pulled out of the parking lot, Shaw, Dwek,

and Cheatam began talking about Joseph Doria, Commissioner

of the Department of Community Affairs, and how they should

not do the exchange in front of Joe. Celebrating their



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success, Dwek commended Cheatam and Shaw for their role.

Dwek told them that they had worked very hard, promising to

pay them another $10,000 when they finished with Doria.

Smith has pled not guilty and is exercising his

constitutional right to a jury trial. In these pretrial

motions, he moves for an Order:

1)Dismissing all Hobbs Act extortion counts in theIndictment;

2)Dismissing the Federal Program Bribery Charge under18 U.S.C. 666;

3)Granting an evidentiary hearing on his entrapmentdefense or, alternatively, permitting him to explore

on cross-examination at trial all areas related to

his entrapment defense;

4)Dismissing the indictment on due process groundsbased on the Governments outrageous misconduct;

5)Granting discovery and an evidentiary hearingregarding the grand jurys investigation of this

case;

6)Granting a bill of particulars;7)Compelling the Government to produce at this time

discovery materials under Rule 16, 404(b) evidence,

trial exhibits, Brady/Giglio evidence, and all

Jencks materials;



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8)Compelling the Government to provide a list of allco-conspirator statements that will be introduced in

their case-in-chief and scheduling a James hearing,

a minimization hearing, and a hearing to determine

the authenticity and admissibility of the recorded

conversations;

9)Compelling the Government to provide additionaldiscovery, including but not limited to the most

recent and updated version of the Department of

Justices guidelines regarding the use of

confidential informants and/or any other official

guidelines that governed the terms of the informant

relationship between the Government and Solomon

Dwek, in his capacity as cooperating witness; and

10) Permitting Smith to file additional motions asnecessary.

Legal Argument

POINT I.

THE HOBBS ACT EXTORTION COUNTS SHOULD BE DISMISSED BASED ON

THE STATUTES PLAIN LANGUAGE AND ITS VAGUENESS AS APPLIEDTO SMITHS CASE.

A dismissal of all Hobbs Act extortion counts of the

Indictment (Counts One, Two and Three) is proper under Rule

12(b)(3) of the Federal Rules of Criminal Procedure. To



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(quoting United States v. Wecht, No. 06-0026, 2007 WL

3125096, *5 (W.D. Pa. Oct. 24, 2007)).

Applying this same approach, this Court should find

that, as a matter of law, all counts of the Indictment

should be dismissed for two reasons: (1) The charged

offenses for Hobbs Act extortion (Counts 1-3), do not and

can not reach the conduct pleaded in the Indictment without

violating Smiths fundamental due process rights; and (2)

The Hobbs Act is impermissibly vague as applied to Smiths

alleged conduct pleaded in the Indictment.

A.Official influence is not official action and thuscannot establish the requisite quid pro quo bribery

for convictions under the Hobbs Act extortion statute,

18 U.S.C. 1951(a).

The charges in the Indictment must be dismissed

because the Government seeks to prosecute Smith not for

taking official action, as required to prove quid pro quo

bribery, but instead for his official influence, which by

any stretch can not support a bribery conviction. This

attempted expansion of the scope of the Hobbs Act, 18

U.S.C. 1951(a), violates Smiths due process rights and

must be rejected.

To secure a conviction for bribery or, more precisely,

extortion under color of official right under the Hobbs

Act, the government must also prove that the payment or



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benefit was made in return for official acts. Evans v.

United States, 504 U.S. 255, 268 (1992); Antico, 275 F.3d

at 258 (emphasis added). In Antico, relying on the Supreme

Courts decision in Evans, the Third Circuit held that in a

prosecution for Hobbs Act bribery in a context other than

the receipt of campaign contributions, the government need

not prove a direct quid pro quo. Antico, 275 F.3d at 257.

However, while proof of a specific official act is not

required, the Antico court squarely held that the

government must prove nevertheless that a public official

has obtained a payment to which he was not entitled,

knowing that the payment was made in return for official

acts. Id. (emphasis added) (citing Evans, 504 U.S. at

268). The Third Circuit explained: In other words, no

official act (i.e., no quo) need by proved to convict

under the Hobbs Act. Nonetheless, the official must know

that the payment the quid was made in return for

official acts. Antico, 275 F.3d at 257.

Necessarily fatal to its position, the Government

attempts to prosecute Smith for bribery based on something

much less than a quid pro quo arrangement influence

that falls short of taking any official action. The

Indictment alleges that Smith, among others, conspired from

April 2009 through July 2009 to extort cash payments and



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illegal[ly] structured campaign contributions from Dwek

in exchange for Smiths official assistance, action and

influence in State and local government matters. Ind., Ct.

I, 2. Stretching the bounds of the statute charged

beyond any reasonable interpretation, the Government

suggests that Smith is guilty of extortion because he

inquired as to the status of Dweks DEP application

regarding what he represented to be his Garfield Avenue

Project, Ind., Ct. I, 4(F)-(G), and offered to talk to a

State Assemblyman on a Department of Transportation matter

relevant to Dweks purported Bayonne Project, Ind., Ct. I,

4(O)-(P). Additionally, the Government suggests that

Smith committed extortion when he allegedly told Dwek he

would make inquiries about the Garfield Avenue Project.

Ind., Ct. I, 4(P). In noting that Smith provided advice

to [Dwek] and Cheatam regarding how to handle any issues

that might arise with a particular Jersey City

Councilwoman, the Government attempts to put a nefarious

spin on Smiths comment: See, not only do you have my

connections, . . . you got my . . . knowledge. Ind., Ct.

I, 4(Q). And, the Government suggests further that

Smiths clout as a local official makes his actions in

this case criminal. Ind., Ct. I, 4(S).



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But the Government entirely misses the mark in seeking

to treat influence as criminal conduct under the Hobbs

Act. Discussing development projects and making inquiries

regarding the status of such projects was part and parcel

of Smiths political responsibilities as a State

Assemblyman and as a mayoral candidate. To be sure, New

Jerseys Legislative Code of Ethics substantiates this.

That Code provides that, while a member of the Legislature

may not negotiate on behalf of any party in connection with

a matter before a State agency, a member is not prohibited

or restricted from

(a)Making an inquiry for information on behalf of aconstituent, which may include ascertaining the

status of a matter, identifying the statutes or

regulations involved in a matter or inquiring how

to expedite a matter;

(b)assisting the constituent in bringing the meritsof the constituents position to the attention ofa State agency; or

(c)making a recommendation on a matter or indicatingsupport for the constituents position to a State

agency; if no fee, reward, employment, offer of

employment or other thing of value is promised

to, given to or accepted by the member, whether

directly or indirectly, and the member does not

endeavor to use his official position to

improperly influence any determination.

N.J. Legis. Code of Ethics 2:2, 2:3a.(2)(a)-(c).

Even the Government concedes in the Indictment that

Smiths official duties as a State Assemblyman included:

providing constituent services for New Jersey citizens and



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36

organizations, which services included . . . bringing the

merits of a constituents position to the attention of a

State department or agency, and making a recommendation on

a matter in support of a constituents position before a

State department or agency. Ind. Ct. 1, 1(B). Thus, the

Indictments allegations that Smith made inquiries for

Dwek, inquired as to status updates on his projects, and

offered his support on Dweks Bayonne Project to his fellow

Assemblyman are, put simply, much ado about nothing.

Moreover, this type of conduct does not rise to the level

of official action, and thus can not support a quid pro

quo bribery theory under the Hobbs Act.4

4 The allegations of official action and influence against Smith here pale in comparisonto the allegations against former New Jersey State Senator Wayne Bryant in his case. SeeUnited States v. Bryant, 556 F. Supp. 2d at 391. InBryant, Judge Wolfson set forth anassortment of official actions that Bryant allegedly took to favor the School ofOsteopathic Medicine [SOM]:

In December 9, 2002, at a meeting of the Senate Education Committee, Bryantstrongly criticized the findings of the Vagelos Commission to protect the interestsof SOM. Id. at 19c. In or about 2003, Bryant used his State Senate staff toarrange meetings for defendant R. Michael Gallagher with members of the SenateBudget and Appropriations Committee, at which defendant Gallagher presented awhite paper regarding capital projects at SOM that needed funding.Id. at 20a.From in or about March 2003 through June 2006, Bryant directed changes in thebudget of the State of New Jersey that allocated large sums of money to SOM. Id.at 19b. For fiscal year 2004, Bryant inserted specific language provided bydefendant Gallagher into the state budget which described the merits of SOMsCenter for Childrens Support, and supported an $800,000 allocation for SOM,which he ensured was included in the state budget in fiscal years 2004, 2005 and2006.Id. at 20bii-iii (emphasis added).

Further, from in or about August 2003 through late 2005, Bryantrepresented, appeared for, and negotiated on behalf of SOM with state agencies,



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If Smith accepted anything at all from Dwek, he

accepted campaign contributions. Though a State officer,

employee, or member of the Legislature may not accept any

thing of value which he knows or has reason to believe is

offered to him with intent to influence him in the

performance of his public duties and responsibilities,

[t]his . . . shall not apply to the acceptance of

contributions to the campaign of an announced candidate for

elective public office. N.J.S.A. 52:13D-14.

Indeed, any ruling treating Smiths conduct as

criminal where it has not been so defined by statute would

compromise Smiths due process rights. See, e.g., United

States v. Lanier, 520 U.S. 259, 266 (1997) ([D]ue process

bars courts from applying a novel construction of a

criminal statute to conduct that neither the statute nor

and used his official position to influence those agencies to take action favorableto SOM.Id. at 21. These included setting up a meeting between himself,Gallagher, and the Commissioner of the New Jersey Department of Health andSenior Services where Bryant and Gallagher sought to influence theCommissioner to allocate to SOM a portion of funds appropriated to the CancerInstitute of South Jersey,Id. at 21.a; setting up a meeting between himself,Gallagher, and the Treasurer of the State of New Jersey at Bryants legislativeoffice in Camden, New Jersey, in an effort to influence the Treasurer to disbursespecial targeted tax relief payments to the Borough of Stratford, New Jersey tocompensate the borough for the land that SOM was planning to acquire,Id. at 21.c; and two other instances where Bryant persuaded state agencies to providefunding to SOM.Id. at 21.b., d.

Id. at 391.

Nothing even vaguely familiar to these official actions is alleged against Smithin the Indictment.



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any prior judicial decision has fairly disclosed to be

within its scope.) (citations omitted); id. (explaining

that, consistent with fair warning principles, the

touchstone is whether the statute, either standing alone or

as construed, made it reasonably clear at the relevant time

that the defendants conduct was criminal.); see also

Bouie v. City of Columbia, 378 U.S. 347, 350 (1964)

(suggesting that due process clause guarantees that a

criminal statute give fair warning.). Thus, because the

law is clear that bribery can not be proven without the

requisite evidence of an official act performed or

contemplated, the Government cannot prosecute Smith under

the Hobbs Act for using influence and all Hobbs Act

charges must be dismissed.

B. The Hobbs Act extortion statute, 18 U.S.C. 1951a, is

unconstitutionally vague as applied to the conduct charged

in the Indictment.

The Hobbs Act extortion statute should be deemed void

for vagueness as applied to the conduct charged against

Smith in the Indictment. The Hobbs Act prohibits one from

obstruct[ing], delay[ing], or affect[ing] commerce . . .

by . . . extortion . . . ., which is the act of obtaining

of property from another, with his consent . . . under

color of official right. 18 U.S.C. 1951(a),(b)(2). As



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applied to the facts alleged in the Indictment, this

statute does not give adequate warning that Smith or

someone in his position could be prosecuted.

A statute is unconstitutionally vague if it fails to

define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement. Posters N

Things, Ltd. v. United States, 511 U.S. 513 (1994);

Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also

Borden v. School Dist. of Tp. East Brunswick, 523 F.3d 153,

166-67 (3d Cir. 2008) (citations omitted). In considering

a vagueness challenge, a court must evaluate the statute

in light of the facts of the case and on an as-applied

basis. United States v. Whittaker, 999 F.2d 38, 42 (2d

Cir. 1993); see also Borden, 523 F.3d at 166-67 (citations

omitted). Section 1951 is void for vagueness as applied

here because Smith could not have known that the alleged

conduct in the Indictment could constitute a violation of

the Hobbs Act.

According to the Government, the alleged conduct that

gives rise to the criminal charges against Smith includes

making inquiries on behalf of a constituent, reaching out

to a fellow Assemblyman, offering his support on Dweks



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development projects, and offering information relevant to

dealing with a local Councilwoman. In seeking to

criminalize these types of actions, the Government attempts

inappropriately to expand the reach of 1951 so as to

sweep up conduct that, when performed by Smith in his

capacity as an Assemblyman and mayoral candidate was not

only lawful, but would not put a reasonable public official

in Smiths position on notice that he was exposed to

criminal prosecution for bribery. More specifically, no

reasonable public official would think that he had criminal

exposure because he offered support for and made inquiries

about the status of a constituents local development

projects. Yet, that is precisely what the Government seeks

to prosecute Smith for, as set forth in Counts One through

Three of the Indictment.

Mindful then of the statute and the Governments

intended use of it in this case, this Court should strike

down 1951 because, as applied here, it is

unconstitutionally vague. Indeed, an ordinary person would

not read this statute to mean that a public official who

engages in the conduct charged here conduct that falls

far short of taking official actions is criminally

liable. Moreover, nothing in the statute puts a public

official on notice that inquiring as to the status of a



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constituents project or meeting to discuss a supporters

requests would expose him to a federal felony prosecution.

Therefore, based on what the Indictment claims Smith

did and the ordinary person standard for considering

vagueness attacks, the Hobbs Act extortion statute, 1951,

is void as applied here and requires a dismissal of all

Hobbs Act counts.

POINT II.

THE SECTION 666 BRIBERY COUNT SHOULD BE DISMISSED BECAUSE

IT WAS NOT INTENDED TO APPLY TO THE FACTS ALLEGED HERE AND

REQUIRES PROOFS THAT DO NOT EXIST IN THIS CASE.

Additionally, this Court should dismiss Counts Four

and Five of the Indictment, which charge Smith with bribery

concerning programs receiving federal funds. 18 U.S.C.

666(a)(1)(B). Counts Four and Five allege that, on April

30, 2009 and July 17, 2009, Smith accepted cash to be

influenced and rewarded in connection with a business,

transaction, and series of transactions of the State of New

Jersey, the DEP, and the DOT, involving . . . $5,000 and

more. Ind., Ct. IV & V, 3. Section 666 provides in

pertinent part:

(a) Whoever, if the circumstance described in

subsection (b) of this section exists



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(1) being an agent of an organization, or of a State,local . . . government, or any agency thereof

. . . .

(2) corruptly solicits or demands for the benefit ofany 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.

shall be fined under this title, imprisoned not more

than 10 years, or both.

(b) The circumstance referred to in subsection (a) of

this section is that the organization, government, or

agency receives, in any one year period, benefits in

excess of $10,000 under a Federal program involving a

grant, contract, subsidy, loan, guarantee, insurance,

or other form of Federal assistance.

To prove a violation of 666(a)(1)(B), the Government

must prove: (1) corrupt solicitation; (2) of anything of

value; (3) with the intention of being influenced in

connection with any transaction of a local government or

organization receiving at least $10,000 in federal funds

annually; and (4) where the transaction involves anything

of value of $5,000 or more. United States v. Cicco, 938

F.2d 441, 444 (3d Cir. 1991). The Government cannot

succeed for two reasons. First, 666 does not apply to

this case. Second, even assuming the statute reaches the

conduct here, the Government lacks the evidence to prove



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beyond a reasonable doubt that Smith committed bribery

under 666.

Preliminarily, 666 was not intended to apply to this

case or Smiths conduct. Based on its legislative history,

666 was enacted to enlarge and clarify the class of

persons subject to the federal bribery laws. Cicco, 938

F.2d at 445 (citing and discussing legislative history).

More specifically, the statute was designed to target a

particular group: non-public officials. The intent of the

statute was to ensure that federal bribery laws applied to

persons other than public officials because other

legislation did not encompass such persons. See id.

(citing and discussing Congresss specific reference to

United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976), a

decision that pre-dated 666 in which the Court of Appeals

for the Second Circuit vacated a conviction of a non-public

official for bribing a public official under 18 U.S.C.

201 because statute applied only to those with an

employment relationship to the federal government). Thus,

666 filled a gap in the law to remedy specific

deficiencies in existing federal theft and bribery

statutes. Id. at 446.

Because 666 was not intended to target the crimes or

the individual charged here, Smith should not be prosecuted



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for that statutory violation. The Government has charged

him with three counts of Hobbs Act extortion for allegedly

taking bribes, pleading violations of 18 U.S.C. 1951. In

other words, they have charged him with an offense that, on

its face, applies to public officials and reaches the type

of bribery alleged. Charging Smith as well under 666 is

prosecutorial overreaching and, no doubt, inconsistent with

the express purposes and intent underlying the statute.

Thus, this Court should dismiss the 666 counts of the

Indictment.

Alternatively, even if this Court determines that

666 applies to this case, it should conclude nevertheless

that the Government cannot demonstrate sufficiently the

elements of the offense. Smith did not corruptly solicit

anything from Dwek and lacked any criminal intent. To

reiterate, if he accepted anything at all, he accepted what

he believed were legitimate campaign contributions. See

Legal Argument, Point I, supra. Additionally, the

Government cannot prove that the DEP and DOT, as State

agencies, received more than $10,000 in federal funds

during 2009. In fact, these agencies did not receive any

federal funds. Thus, because the requisite proofs do not

exist here, the Governments theory under 666 is fatally



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flawed. The 666 counts should be dismissed at this

juncture.

POINT III

ALTERNATIVELY, SMITHS ENTRAPMENT DEFENSE MUST BE FLESHED

OUT AT A PRETRIAL EVIDENTIARY HEARING OR, AT LEAST, RULED

AN APPROPRIATE TOPIC FOR BROAD CROSS-EXAMINATION

AT TRIAL.

Alternatively, if this Court denies Smiths motions

for dismissal of the charges, Smith shall pursue at trial

an entrapment defense. To present effectively his defense,

Smith seeks a hearing at which he may proffer critical

entrapment evidence. However, if the Court declines to

grant a hearing, Smith seeks a ruling that he will be

allowed to liberally explore this subject during cross-

examination of the Governments trial witnesses.

An entrapment defense may defeat a prosecution only

when the Governments deception actually implants the

criminal design in the mind of the defendant. United

States v. Fedroff, 874 F.2d 178, 181 (3d Cir. 1989)

(quotations omitted). It has two related elements: 1)

government inducement of the crime and 2) lack of

predisposition on the defendants part to engage in the

criminal conduct. Id. (citing Mathews v. United States,



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108 S. Ct. 883, 886 (1988)); accord Hampton v. United

States, 425 U.S. 484 (1976); United States v. Russell, 411

U.S. 423 (1973). A defendant has been entrapped when he was

not predisposed to commit the crime charged, but was

induced to do so only by the governments trickery,

persuasion, or fraud. Id. (citations and quotations

omitted). Significantly, a defendant does not have to

admit the elements of the crime charged to be entitled to

an entrapment defense. See Mathews, 108 S. Ct. at 886

([E]ven if the defendant denie[s] one or more elements of

the crime, he is entitled to an entrapment instruction

whenever there is sufficient evidence from which a

reasonable jury could find entrapment.).

This Court should hold a hearing to allow Smith an

opportunity to introduce critical evidence of non-

predisposition and inducement. Cf.United States v. Pervez,

871 F.2d 310, 318-19 (3d Cir. 1989) (remanding post-trial

for a proffer hearing to allow defendant to present any

evidence of entrapment outside of the record and to permit

court to determine if sufficient evidence warranted jury

consideration of entrapment defense). Relevant to the issue

of non-predisposition, Smith can demonstrate evidence of

his prior lawful conduct and well-respected character. Id.

at 183 (citation omitted). See Fedroff, 874 F.2d at 181



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As to the inducement prong of the defense, evidence is

sufficient if it shows that law enforcement officials

resorted to persuasion, fraudulent representation,

threats, coercive tactics, harassment, promises of reward

or pleas based on need, sympathy or friendship. Fedroff,

874 F.2d at 184 (quoting United States v. El-Gawli, 837

F.2d 142, 149 (3d Cir.), cert. denied, 488 U.S. 817

(1988)). Quite simply, the evidence of governmental

misrepresentation, persuasion, and coercion tips the

scales. A plethora of evidence will demonstrate that Dwek,

as a Government agent, was a tenacious player with an

unrivalled talent for lying and cheating that he used to

service the Government and, of course, himself. He

secretly taped possibly thousands of conversations with New

Jersey politicians in countless venues. When his target

refused to give him the calculated response he so

desperately sought, Dwek bulldozed over him. Specifically,

when Dwek struggled to elicit from his target an

incriminating remark, Dwek offered one on his own. Shaw

and Cheatham, acting as Dweks unofficial yet de facto

agents, lured Smith into meeting with Dwek, representing

falsely to their long-time friend and colleague that it was

acceptable to do business with Dwek and that he was a

legitimate businessman. Smith never sought out Dwek or



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asked Shaw and/or Cheatam to link him to someone like Dwek.

Smith wanted no part of Dwek or anything he had to offer:

I dont do quid pro quo. Ed [Cheatam] will tell you how I

operate. But undaunted by Smiths disinterest, the

evidence shows unequivocally that Dwek, Shaw, and Cheatam

were, quite simply, out to get him:

Dwek: Is this guy going to help me out or what?

Cheatam: Hell help you.

Dwek: Hes tough.

Shaw: When he was the mayor he was the best

mayor we had in 30 years.

Dwek: The thing is he doesnt want no cash

How are we going to operate with this

guy.

Dwek: Maybe you can talk to him and straighten

him out.

Cheatam: If not I have people I can give the cashto and they give him the checks.

Dwek: I dont do quid pro quo. Whats that

suppose[d] to mean?

See Procedural History and Statement of Facts, supra. If

their plotting and scheming are not obvious enough,

Cheatams act of tossing Dweks cash-filled envelope into

Smiths departing car is. See Procedural History and

Statement of Facts, supra.



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And, even if a scintilla of doubt existed as to

whether Dweks actions induced Smith into committing any

offense, the wiretapped communications between Cheatam and

Shaw destroy that swiftly and permanently. See Procedural

History and Statement of Facts, supra (detailing critical

conversations between Cheatam and Shaw regarding their

financial stake in Dweks ability to pass bribes to

political figures whom they recruit and meet with). In

short, the wiretaps shed an illuminating light on this case

and, particularly, how Dwek and the Government, aided

perhaps unofficially by Team Cheatam-Shaw, wove a tight

web that trapped, among others, Smith.

Because the evidence suggests a well-grounded factual

basis for an entrapment defense in this case, Smith

requests a hearing to flesh out further his defense.

Alternatively, if a hearing is denied, Smith requests this

Court to rule that he will be permitted considerable

latitude to explore his entrapment defense while cross-

examining the Governments witnesses at trial.

POINT IV.

THE CONDUCT OF THE GOVERNMENT AND ITS AGENTS IS

SO OUTRAGEOUS THAT IT VIOLATES SMITHS CONSTITUTIONAL

DUE PROCESS RIGHTS.

The Governments investigative tactics in this case



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are sufficiently outrageous to raise a valid due process

defense to the charged offenses. This Court should hold an

independent evidentiary hearing based on a prima facie

showing of outrageousness. On due process grounds, a

defendant may challenge an indictment based on the

governments outrageous law enforcement investigative

techniques. See United States v. Voigt, 89 F.3d 1050, 1064

(3d Cir. 1996); United States v. Twigg, 588 F.2d 373 (3d

Cir. 1978). The defense of outrageous government conduct

focuses on whether a defendants due process rights have

been violated because the government created the crime for

the sole purpose of obtaining a conviction. United States

v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999). A government

misconduct defense must be predicated on intolerable

government conduct which goes beyond that necessary to

sustain an entrapment defense. United States v. Jannotti,

673 F.2d 578, 607 (3d Cir. 1982). Put another way, this

defense may apply if the government's conduct rendered the

prosecution of the defendant fundamentally unfair, see

Hampton v. United States, 425 U.S. 484, 494 n.6 (Powell,

J., concurring), because it is shocking, outrageous, and

clearly intolerable. United States v. Nolan-Cooper, 155

F.3d 221, 230 (3d Cir. 1998).

harvey smith[1]

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