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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA :

-v.- : S1 15 Cr. 317 (KMW) DEAN SKELOS and ADAM SKELOS, :

Defendants. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE GOVERNMENT’S MOTIONS IN LIMINE

PREET BHARARA United States Attorney for the Southern District of New York One St. Andrew’s Plaza New York, New York 10007

Jason A. Masimore Rahul Mukhi Tatiana R. Martins Thomas A. McKay Assistant United States Attorneys

-Of Counsel

Case 1:15-cr-00317-KMW Document 54 Filed 10/26/15 of 36

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA :

-v.- : S1 15 Cr. 317 (KMW) DEAN SKELOS and ADAM SKELOS, :

Defendants. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

THE GOVERNMENT’S MOTIONS IN LIMINE

The Government respectfully submits this memorandum of law in support of its motion

for in limine rulings from the Court. As set forth in more detail below, the Government seeks the

following rulings with respect to certain evidence:1

1. Admission of acts taken by defendants Dean Skelos and Adam Skelos in

furtherance of the charged extortion and honest services fraud conspiracies beyond specific acts

enumerated in the charging documents.

2. Admission of statements by participants in the defendants’ extortion and bribery

schemes to demonstrate the participants’ then-existing states of mind.

1 In advance of this filing, the Government raised each of the issues discussed herein with counsel for each of the defendants. For each issue, counsel stated that the defendants objected to the Government’s position. Where the defendants have indicated that they have an objection to certain evidence but not to other similar evidence, that distinction is noted in the relevant section of this memorandum. In addition, the defendants have informed the Government that they do not object to: (1) the introduction by the Government of the fact of Sheldon Silver’s arrest on January 22, 2015 on corruption charges, and evidence of news reports concerning a federal investigation into Dean Skelos; (2) the introduction by the Government of training received by Dean Skelos on the New York State Public Officer’s Law, which includes, among other things, a code of ethics for state legislators, to establish that Dean acted with the requisite intent, including the specific intent to deprive New York citizens of his honest services; and, relatedly, (3) the preclusion by either party of eliciting expert or other testimony regarding whether the conduct charged in this case violated the New York Public Officer’s Laws and other State laws.


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3. Admission of statements to show their effect on the listener.

4. If defendant Dean Skelos testifies, or introduces evidence of his good character

through other witnesses, leave to cross examine Dean Skelos and other witnesses on, and

potentially admit evidence of Dean Skelos’s long-time employment at a Long Island law firm,

for which he performed no legal work, and about which he made false and misleading statements

to the public and others about the nature of his work.

5. [Under Seal]

6. [Under Seal]

FACTUAL BACKGROUND

From in or about 1984 until the present, defendant Dean Skelos has served as a member

of the New York State Senate (the “Senate”), representing a Senate District that covers parts of

Nassau County. (Superseding Indictment ¶ 1). Since in or about January 2011, until on or about

May 11, 2015, Dean Skelos was the Majority Leader and/or Co-Majority Leader of the Senate.

(Id.). As Majority Leader, Dean Skelos exercised enormous power over the Senate and New

York State government. (Superseding Indictment ¶ 2). In addition to his power and influence in

Albany, Dean Skelos wielded official power and influence in Nassau County, where he was the

county’s highest ranking State official. (Id.).

As alleged, from at least in or about 2010 up to and including in or about April 2015,

Dean Skelos criminally abused the power of his office to obtain payments for his son, defendant

Adam Skelos. (Superseding Indictment ¶ 8). The payments solicited and accepted by the

defendants included jobs for Adam Skelos for which he was not qualified and often performed


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little work, other than to attempt to increase his payments through the official actions of his

father, Dean Skelos. (Id.). In order to bring about and continue these payments, Dean Skelos

repeatedly pressured the entities from which he and Adam Skelos solicited money, including

during meetings, conversations, and time periods in which the same entities were lobbying Dean

Skelos to take legislative actions in the entities’ favor, and Dean Skelos then took numerous

official actions in favor of the entities that agreed to pay his son. (Id. ¶¶ 11, 18).

On July 21, 2015, a Grand Jury returned an eight-count Superseding Indictment. Count

One of the Superseding Indictment charges the defendants with conspiring to obtain property

under color of official right from entities with business before New York State, in violation of

Title 18, United States Code, Section 1951; Count Two of the Superseding Indictment charges

the defendants with conspiring to commit honest services wire fraud by soliciting and accepting

bribes and/or kickbacks from entities with business before New York State, in violation of Title

18, United States Code, Section 1349; Counts Three, Four, and Five each charge the defendants

with obtaining property under color of official right, in violation of Title 18, United States Code,

Section 1951 and 2, related to a particular major real estate development firm (“Developer-1”)

(Count Three), an environmental technology company (the “Environmental Technology

Company” or the “Company”) (Count Four), and a medical malpractice insurance administrator

(the “Malpractice Insurance Administrator”) (Count Five), respectively; Counts Six, Seven, and

Eight each charge the defendants with solicitation and acceptance of bribes and gratuities, in

violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2, also related to Developer-

1 (Count Six), the Environmental Technology Company (Count Seven), and the Malpractice

Insurance Administrator (Count Eight), respectively.


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ARGUMENT

I. EVIDENCE OF THE ACTS DESCRIBED BELOW SHOULD BE ADMITTED AS DIRECT EVIDENCE In discussions with the Government, the defendants have taken the position that

the Government may only introduce evidence that either relates to the three particular

schemes charged in the substantive counts of the Superseding Indictment, or that was

specifically cited in the charging documents in this case, notwithstanding the fact that the

Superseding Indictment charges conspiracies that, by their own terms, cover conduct that

extends beyond the substantive offenses and the acts enumerated in the charging

documents.2 The defendants’ effort to limit the Government’s proof is unsupported by

law and should be rejected.

A. Background

The Superseding Indictment charges the defendants with participating in conspiracies to

misuse Dean Skelos’s official position to obtain benefits for his son Adam Skelos, conspiracies

that plainly extend beyond the specific actions taken by the defendants that are detailed as

examples in the charging documents in this case. In particular, the Superseding Indictment

charges a conspiracy to commit extortion under color of official right (Count One) and a

conspiracy to engage in honest services wire fraud (Count Two). As set forth in the Superseding

Indictment, these counts relate to the defendants’ “corrupt scheme to monetize DEAN

SKELOS’s official position to obtain for ADAM SKELOS hundreds of thousands of dollars in

bribes, gratuities, and extortion payments from campaign donors to DEAN SKELOS and/or

2 Defendants have informed the Government that they do not object to the admissibility of evidence that was referenced in the criminal complaint or the Superseding Indictment. For example, the defendants concede that the evidence cited in paragraphs 19(a), 19(b) and 19(d) of the complaint are admissible as direct evidence of the charged conspiracies.


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companies with business before the State” from in or about 2010 up to an including April 2015.

(Superseding Indictment ¶ 8). Thus, the conspiracies charged in Counts One and Two cover

broad actions related to the defendants’ agreement to extort and solicit bribes and kickbacks from

“campaign donors to DEAN SKELOS and/or companies with business before the State.” (See

id. ¶ 8 (listing efforts taken by Dean Skelos “including but not limited to” enumerated acts)).

Indeed, the “to wit” clauses of Counts One and Two allege wide-ranging conspiracies wherein

the defendants “would and did arrange and attempt to arrange for DEAN SKELOS to cause

entities with business before New York State to direct payments to ADAM SKELOS with the

expectation that DEAN SKELOS would take official actions favorable to their interests and

would not take official actions adverse to their interests” (Count One), and in which Dean

Skelos, while serving as the Senate Majority Leader, “would take official action in return for

payments to his son,” (Count Two).

That the conspiracies encompass acts that extend beyond the several examples listed in

the charging documents has been clear to the defendants at least since the Government started

producing discovery in this case within days of the defendants’ May 4, 2015 arrest on a criminal

complaint. As the discovery has made clear to the defendants, there is compelling evidence –

evidence that the defendants now are seeking to preclude – reflecting numerous efforts by the

defendants to use the official power of Dean Skelos to obtain monetary benefits for Adam Skelos

that extend beyond those successfully obtained from Developer-1, the Environmental

Technology Company, and the Malpractice Insurance Administrator. For example, in Rule 16

discovery, the Government produced wiretap linesheets to the defendants on June 2, 2015 that

categorized numerous calls as “pertinent” that did not relate specifically to Developer-1, the

Environmental Technology Company, and the Malpractice Insurance Administrator schemes, or


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to any of the other acts specifically cited in the charging documents. Rather, the calls marked

“pertinent,” calls which the defendants now seek to preclude, related in many instances to other

acts that were relevant to the defendants’ use of Dean Skelos’s office to obtain benefits for Adam

Skelos from numerous entities with business before New York State. Some of these calls were

also highlighted to the defense in the wiretap affidavits and periodic reports produced in

discovery as early as May 7, 2015.3

In several discussions over the last two weeks, the Government has raised with defense

counsel the evidence of the conspiracies that the Government intends to introduce at trial,

including the particular matters set forth below. Although the defendants initially asserted that

they would oppose the introduction of any evidence that was not tied to one of the substantively-

charged schemes (i.e., any evidence that did not relate to Developer-1, the Environmental

Technology Company, and the Malpractice Insurance Administrator), on October 23, 2015, the

defendants limited their objection to evidence that was not specifically detailed in the criminal

complaint or the Superseding Indictment. As set forth below, there is no legal distinction

between those acts specifically referenced in the charging documents as examples of overt acts in

furtherance of the conspiracy and those that also constitute direct evidence of the alleged crimes

but were not specifically described in the charging documents. Accordingly, the Government

seeks a ruling permitting it to offer evidence of the conspiracies charged in Counts One and Two

that extend beyond the examples enumerated in the charging documents, including, but not

limited to, evidence that the defendants took the following acts (collectively, the “Other

Conspiracy Evidence”):

3 Notably, while the defendants did seek particulars on various other issues, which the Court recently denied, the defendants have never sought additional detail as to each particular act taken by the defendants in furtherance of the charged conspiracies.


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• On or about December 22, 2014, during the period of the charged conspiracies, Adam Skelos called an individual affiliated with a group that represents Greek diners and whom Adam Skelos had been soliciting for commissioned sales business. During the sales call, Adam Skelos invoked the power of Dean Skelos’s office by citing his frequent appearance in the “papers,” and stated that, if the individual wanted to “utilize” Adam Skelos’s “reach,” the individual needed to call Adam Skelos to set up a meeting to discuss purchasing business from Adam Skelos. When the individual asked Adam Skelos what he meant, Adam Skelos stated “I’m not gonna go there. I’m not going to say this on the phone. You could’ve heard those opportunities in person.” (Collectively, the “Greek Diner Call Evidence.”)4

• In late 2014 and early 2015, during the period of the charged conspiracies, Dean Skelos and Adam Skelos undertook efforts to obtain a position for Adam Skelos’s wife on the zoning appeals board of a town in Nassau County (the “Zoning Board”). In particular, on several recorded calls, Dean Skelos and Adam Skelos discussed Dean Skelos’s efforts to get Adam Skelos’s wife onto the Zoning Board, and the salary and health benefits that Adam Skelos’s wife would get from the position. On January 12, 2015, Adam Skelos called a Senate employee, who temporarily resided with Dean Skelos in Albany, and stated “I don’t want to text him [Dean Skelos] anything. Can you just remind him two things that – just say I just wanted to remind him about [Adam Skelos’s wife’s name] and Nassau County?” On other intercepted calls, Adam Skelos discussed with third parties – including the individual identified as CW-2 in the Complaint – his ability to corruptly obtain zoning decisions favorable to real estate deals he brokered given his wife’s appointment. (Collectively, the “Zoning Board Evidence.”)5

B. Applicable Law

Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.

Federal Rule of Evidence 402, in turn, provides that “[a]ll relevant evidence is admissible, except

as otherwise provided by the Constitution of the United States, by Act of Congress, by these

4 This intercepted call was provided to the defendants as part of Rule 16 discovery in early June 2015, and was marked as pertinent on the wiretap line sheets. It was also highlighted repeatedly in the Title III applications. 5 In Rule 16 discovery the Government produced wiretapped calls related to this scheme and identified the calls as pertinent.


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rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” Fed. R.

Evid. 402.

Relevant evidence is admissible pursuant to Rules 401 and 402 regardless of whether all

such evidence is detailed in the charging instrument. Thus, “[i]t is clear the Government may

offer proof of acts not included within the indictment, as long as they are within the scope of the

conspiracy.” United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). See also United States v.

Amrep Corp., 545 F.2d 797, 800 (2d Cir. 1976) (“Relevant evidence should be admitted and not

excluded. It makes no difference whether such evidence is particularized in the indictment. . .

.”); United States v. Jefferson, 562 F. Supp. 2d 719, 724 (E.D. Va. 2008) (in bribery case,

permitting Government to introduce additional facts and legal theories not specifically

enumerated in indictment on grounds that “the Indictment need not enumerate every possible

legal and factual theory of defendant’s guilt so long as the Indictment, as here, recites the

elements of the statutory offense”), aff’d, 674 F.3d 332 (4th Cir. 2012). Indeed, where, as here,

an indictment contains a conspiracy charge, “uncharged acts may be admissible as direct

evidence of the conspiracy itself.” United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999)

(quotation omitted). “An act that is alleged to have been done in furtherance of the alleged

conspiracy is not an ‘other’ act within the meaning of Rule 404(b); rather, it is part of the very

act charged.” United States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997) (quotation omitted).

Consistent with these principles, a broad range of relevant evidence can be introduced to

prove a conspiracy charge, including, for example, evidence of incomplete attempts by co-

conspirators to effect the object of the conspiracy. See, e.g., United States v. Wallach, 935 F.2d

445, 470 (2d Cir. 1991) (“Because it is the conspiratorial plan itself that is the focus of the

charge, the illegality of the agreement is not dependent on the actual achievement of its goal.”).


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Such evidence can also include acts taken by only one co-conspirator to prove the existence of

the conspiracy. See, e.g., United States v. Geibel, 369 F.3d 682, 695 (2d Cir. 2004) (“It is

axiomatic that all acts and statements committed by one co-conspirator in furtherance of the

conspiracy are admissible against all members of the conspiracy.”) (quotation omitted).

In addition, evidence of the defendants’ conduct may be admitted as direct evidence if it

if it arose out of the same transaction or series of transactions as the charged offense, if it is

inextricably linked with the charged conduct, or if it is necessary to complete the story of the

crimes on trial. See United States v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012); United States v.

Quinones, 511 F.3d 289, 309 (2d Cir. 2007); United States v. Carboni, 204 F.3d 39, 44 (2d Cir.

2000). “Background evidence may be admitted to show, for example, the circumstances

surrounding the events or to furnish an explanation of the understanding or intent with which

certain acts were performed.” United States v. Daly, 842 F.2d 1380, 1388 (2d Cir. 1988).

Evidence of other acts taken by the defendant can also be admissible pursuant to Rule

404(b) of the Federal Rules of Evidence. The Second Circuit “has adopted an ‘inclusionary’

approach to other act evidence under Rule 404(b), which allows such evidence to be admitted for

any purpose other than to demonstrate criminal propensity.” United States v. LaFlam, 369 F.3d

153, 156 (2d Cir. 2004). The proper purposes under Rule 404(b) include “motive, . . . intent,

plan, preparation [and] knowledge.” Fed. R. Evid. 404(b); see also United States v. Teague, 93

F.3d 81, 84 (2d Cir. 1996) (proof of state of mind, such as intent and knowledge, is a proper

purpose); United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) (evidence admissible to infer

knowledge or intent where defendant claims his conduct had an innocent explanation); United

States v. Paccione, 949 F.2d 1183, 1198 (2d Cir. 1991) (evidence of prior bribery attempts

admissible to show awareness that acts were not innocent). The Second Circuit has “held


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repeatedly that it is within the court’s discretion to admit evidence of prior acts to inform the jury

of the background of the conspiracy charged, in order to help explain how the illegal relationship

between participants in the crime developed, or to explain the mutual trust that existed between

coconspirators.” United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993) (collecting cases). As

long as the “other act” evidence is relevant for such a proper purpose and its probative value is

not substantially outweighed by any unfair prejudicial effect, it is admissible. See United States

v. McCallum, 584 F.3d 471, 474–75 (2d Cir. 2009); United States v. Zackson, 12 F.3d 1178,

1182 (2d Cir. 1993).

C. Discussion The Superseding Indictment alleges that, from at least 2010 up through and including

April 2015, Dean Skelos and Adam Skelos engaged in a corrupt scheme to monetize Dean

Skelos’s official provision in order to obtain for Adam Skelos hundreds of thousands of dollars

in bribes, gratuities, and extortion payments from various entities with business interests before

New York State. As set forth in detail in the Superseding Indictment, the defendants’ actions in

furtherance of this scheme included, but were not limited to, actions directed at Developer-1, the

Environmental Technology Company and the Malpractice Insurance Administrator. (See

Superseding Indictment ¶ 8 (listing efforts taken by Dean Skelos “including but not limited to”

enumerated acts); Complaint ¶¶ 19, 19(a)-(d)). Because the Other Conspiracy Evidence relates

to acts within the scope of the conspiracy and taken in furtherance of it, it is admissible as direct

proof of the extortion and honest services fraud conspiracies charged in Counts One and Two of

the Superseding Indictment. See United States v. Thai, 29 F.3d at 812 (“[i]t is clear the

Government may offer proof of acts not included within the indictment, as long as they are

within the scope of the conspiracy”). See also United States v. Montour, 944 F.2d 1019, 1026-


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27 (2d Cir. 1991) (“[if] an act is relevant to the alleged conspiracy when viewed in light of all the

evidence, it should not be stricken”); United States v. LaSpina, 299 F.3d 165, 176 (2d Cir. 2002)

(“an overt act may be made by only a single one of the conspirators and need not be itself a

crime”); United States v. Slocum, 695 F.2d 650, 654 (2d Cir. 1982).

The Other Conspiracy Evidence is also admissible independently because it arises from

the same series of transactions, is inextricably intertwined with the charged conduct, and is

necessary to “complete the story of the crime on trial.” United States v. Robinson, 702 F.3d at

37 (quotation omitted). See also United States v. Carboni, 204 F.3d at 44. The proffered acts all

arose from the defendants’ efforts to obtain payments for Adam Skelos through the use of Dean

Skelos’s official position during the timeframe alleged in the Superseding Indictment. As such,

the Other Conspiracy Evidence is part and parcel of the defendants’ sustained attempts to

monetize Dean Skelos’s position for Adam Skelos’s benefit, which are inextricably intertwined

with the charged conduct and are necessary to “complete the story of the crime on trial.”

The Other Conspiracy Evidence is also admissible under Rule 404(b) as relevant to the

defendants’ motive, intent, plan, preparation and knowledge. Evidence regarding the

defendants’ various attempts to secure financial benefits for Adam Skelos is highly probative of

the defendants’ motive—to financially support Adam Skelos. These instances also demonstrate

the defendants’ common plan for achieving that goal—using Dean Skelos’s official position.

See, e.g., United States v. Memoli, 2014 WL 5313707, at *2 (D. Conn. Oct. 16, 2014) (evidence

of uncharged extortionate demands admissible to show defendant’s modus operandi); United

States v. Curley, 639 F.3d at 59 (pattern of acts by defendant probative of intent). See also

United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986) (evidence of prior bribes admissible

to help explain to jury how illegal relationship between defendants developed).


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Moreover, to the extent defendants contest the intent element of any of the alleged

offenses, which the Government expects they will do based on discussions with defense counsel

and motion papers already filed in this case, evidence of these other corrupt acts will be

admissible to show the defendants’ corrupt intent and knowledge that their acts were unlawful.

See Carboni, 204 F.3d at 44 (bad acts admissible to rebut good faith defense); United States v.

Inserra, 34 F.3d at 89 (evidence of false statements conviction admissible to prove state of

mind); United States v. Paccione, 949 F.2d at 1198 (evidence of attempt to bribe public official

relevant to show awareness that actions were not innocent); United States v. Chaimson, 760 F.2d

798, 806 (7th Cir. 1985) (evidence of prior bribe admissible to prove intent).

For these reasons and those set forth below, the Other Conspiracy Evidence (including

other conduct of a similar nature) should be admitted at trial.

1. The Greek Diner Call Evidence Should Be Admitted On or about December 22, 2014, during the timeframe of the charged conspiracies, Adam

Skelos called an individual affiliated with a group that represents Greek diners to whom Adam

Skelos was seeking to sell energy services, which Dean Skelos and Adam Skelos had also tried

to sell to Developer-1 principally in 2011 and 2012, also during the course of the charged

extortion and honest services fraud schemes. During the December 2014 call to the individual

associated with Greek diners, Adam Skelos made clear that buying energy services from Adam

Skelos included a quid pro quo for Dean Skelos’s official power. Specifically, during the call,

Adam Skelos explicitly referred to his father’s frequent appearance in the “papers,” and stated

that, if the individual wanted to “utilize” Adam Skelos’s “reach,” the individual needed to call

Adam Skelos to set up a meeting to buy energy services. When the individual asked Adam

Skelos what he meant, Adam Skelos stated “I’m not gonna go there. I’m not going to say this on


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the phone. You could’ve heard those opportunities in person.” A transcript of that call is

attached hereto as Exhibit A.6 This call is direct evidence of Adam Skelos’s use of his father’s

official power and position to threaten individuals in an attempt to make them pay him, which is

precisely the conduct with which he is charged in Counts One and Two of the Superseding

Indictment. See, e.g., Quinones, 511 F.3d at 309 (threats admissible where they contain

admission to charged crime and are inextricably linked to evidence offered to prove charged

offense).

The evidence further shows that the defendants’ method of communicating threats was

not just limited to the explicit and implicit threats the defendants made to Developer-1, the

Environmental Technology Company, and the Malpractice Insurance Administrator. That is, the

evidence shows that these types of threats were part of the defendant’s modus operandi, and is

also evidence of their intent, when soliciting payments from those with business interests before

New York State. Thus, the phone call with the individual associated with Greek diners

demonstrates the defendants’ common plan and/or intent and is therefore also admissible for

these reasons.

2. The Zoning Board Evidence Should Be Admitted

The Government seeks to admit evidence in support of the conspiracies charged in Count

One and Count Two related to joint efforts by Dean Skelos and Adam Skelos to ensure that

Adam Skelos’s wife received an appointment to a zoning appeals board of a town in Nassau

County. The purpose of the appointment was to make sure that Adam Skelos received additional

income and health benefits, and that Adam Skelos would be able to corruptly use his wife’s

6 Adam Skelos’s tone in the conversation with the individual makes clear that Adam Skelos was attempting to extort him by using Dean Skelos’s official power. The Government can make an audio clip of the call available upon request by the Court.


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position with respect to his real estate deals. The defendants’ attempt to appoint Adam Skelos’s

wife to the board of appeals ultimately was thwarted by publicity surrounding the instant case,

among other things.

The Zoning Board Evidence is probative of Dean Skelos’s willingness to use his official

position to ensure continuing benefits to Adam Skelos as charged in the Superseding Indictment.

On the intercepted calls, Dean Skelos and Adam Skelos discuss how to achieve their goal of

securing the appointment for Adam Skelos’s wife. Moreover, the defendants discuss Adam

Skelos’s wife’s compensation for serving on the zoning board and the fact that Adam Skelos’s

family would receive health benefits if she were appointed. These discussions are especially

probative in light of Adam Skelos’s employment with the Malpractice Insurance Administrator,

which, as Adam Skelos informed the CEO of that company, he needed not only because of the

salary but also because of the health insurance benefits. As alleged, the Malpractice Insurance

Administrator made payments and provided health benefits to Adam Skelos because of the

CEO’s belief, based on his conversations with Dean Skelos, that Dean Skelos would take official

action against the Malpractice Insurance Administrator if those benefits were discontinued.

During the time of the Zoning Board Evidence, Adam Skelos was no longer receiving health

benefits from the Malpractice Insurance Administrator and thus, as the Government will argue at

trial, the defendants were attempting to use Dean Skelos’s position to obtain such benefits from

another entity over which Dean Skelos exercised official power. This is direct evidence of the

charged conspiracies.

Finally, even though the evidence is clearly admissible as direct evidence, it is also

admissible to rebut the defendants’ apparent defense that Adam Skelos lied about his father’s

level of involvement in his business and financial dealings. See Defendant’s Mem. of Law in


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Support of Mot. to Suppress Wiretap Evid. at 3, n.3 (accusing Government of “want[ing] to

continue recording [Adam Skelos’s] lies so that it could make a case against Senator Skelos

based on them”); Defendant’s Reply Mem. of Law in Support of Wiretap Suppression Mot. at 6

(“Adam Skelos had a proclivity to exaggerate and/or misrepresent his importance and ties to

Albany politics and [the Government] hoped to build a case against Senator Skelos by relying on

his son’s careless remarks.”). Evidence that Dean Skelos was in fact involved in an effort to use

his own power and influence to obtain financial benefits for Adam Skelos – i.e., that these were

not simply empty statements by Adam Skelos – is probative of Dean Skelos’s involvement in the

scheme and necessary to rebut the expected defense that Adam Skelos supposedly invoked Dean

Skelos’s power without Dean Skelos’s knowledge.

3. The Other Conspiracy Evidence Is Not Unfairly Prejudicial Under Rule 403

There is no basis to exclude the Other Conspiracy Evidence under Federal Rule of

Evidence 403. First, the evidence is no more sensational than any of the other evidence

concerning the defendants’ participation in the honest services and extortion conspiracies

charged in the Superseding Indictment. See United States v. Williams, 205 F.3d 23, 34 (2d Cir.

2000) (no unfair prejudice where “evidence did not involve conduct more serious than the

charged crime”); United States v. Siegel, 717 F.2d 9, 16-17 (2d Cir. 1983) (evidence of a

$30,000 bribe payment and its “clandestine circumstances” admitted over Rule 403 objection

that dramatic nature of evidence was unfairly prejudicial compared with “the other evidence

presented at trial of small bribes and gratuities”); see generally United States v. Quattrone, 441

F.3d 153, 186 (2d Cir. 2006) (explaining that “[e]vidence is prejudicial only when it tends to

have some adverse effect upon a defendant beyond tending to prove the fact or issue that

justified its admission into evidence”). To the contrary, and as noted above, there is a very


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substantial overlap between the conduct giving rise to the Other Conspiracy Evidence and the

other evidence cited in the charging documents, including evidence concerning Developer-1, the

Environmental Technology Company, and the Malpractice Insurance Administrator.

In particular, the Other Conspiracy Evidence concerns the same means and methods

employed by Dean Skelos and Adam Skelos to obtain payments for Adam Skelos through the

use of Dean Skelos’s official position. For example, the Greek Diner Call Evidence is no more

prejudicial (and in fact is less sensational) than the expected testimony of Supervisor-1 at the

Medical Insurance Administrator, which will include testimony about a threat made by Adam

Skelos to “bash in” Supervisor-1’s head after Adam Skelos told Supervisor-1 that he did not

have to show up for work because his father was the Majority Leader. Similarly, the Zoning

Board Evidence is no more prejudicial than the evidence of the corrupt actions taken by the

defendants in connection with the substantive charges in this case.

Second, the proffered evidence is unlikely to significantly expand or increase the length

of the trial or risk confusing the jury. As noted above, the Other Conspiracy Evidence overlaps

in time and substance with the charged conduct, and is limited in scope. For example, the Greek

Diner Call Evidence consists of one intercepted call and one potential witness; the Zoning Board

Evidence consists of fewer than five intercepted calls and a few additional emails. In short, the

Other Conspiracy Evidence will be limited in scope in light of all the other evidence in the trial.

II. EVIDENCE SHOWING THE STATES OF MIND OF PARTICIPANTS IN THE DEFENDANTS’ SCHEME SHOULD BE ADMITTED

In discussions with the Government, the defendants have taken the position that

the Government may not introduce the evidence set forth below that relates to the state of

the mind of the other participants in the alleged crimes. However, such evidence not only

is necessary to establish an element of the substantive extortion charges – an offense


17

requiring proof of the mental state of its victims – it also is probative of the defendants’

own corrupt intent with respect to the schemes. Accordingly, the defendants’ effort to

limit the Government’s proof of the state of mind of the participants and victims of the

defendants’ corrupt schemes is contrary to law and should be rejected.

A. Background

The Government intends to introduce statements made by participants in the charged

schemes to show the participants’ then-existing states of mind, namely, that certain actions and

conduct taken by victims of the extortion schemes charged in the Superseding Indictment were

motivated by Dean Skelos’s control or influence related to his official position. Such evidence

will include, but is not limited to, the following:

• During the time period when Dean Skelos was making requests of Developer-1 to find income for Adam Skelos, CW-1 and the Developer-1 Lobbyist had several conversations with each other during which they made statements, in sum and substance, that they each felt uncomfortable and pressured by Dean Skelos’s requests given Dean Skelos’s legislative power over Developer-1’s business interests. This evidence will be elicited directly from CW-1 and Developer-1 Lobbyist, both of whom are expected to testify at trial. (Collectively, the “Developer-1 State of Mind Evidence.”)7

• Statements made by the CEO of the Malpractice Insurance Administrator regarding Adam Skelos’s employment at his company. In particular, on or about January 10, 2013, and on other occasions thereafter, the CEO of the Malpractice Insurance Administrator told another executive at the company (the “Executive”) about a phone call that the CEO had with Dean Skelos, and explained to the Executive that he (the CEO) did not believe he could terminate Adam Skelos’s employment without angering Dean Skelos based on Dean Skelos’s statements and demeanor on the call. This evidence will be elicited directly from the CEO and the Executive, both of whom are expected to testify at trial. (Collectively, the “Malpractice Insurance Administrator State of Mind Evidence.”)

B. Applicable Law

Rule 803(3) of the Federal Rules of Evidence provides an exception to the hearsay rule

for “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) .

7 CW-1’s statements also are admissible as statements of a co-conspirator made in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).


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. . , but not including a statement of memory or belief to prove the fact remembered or believed

unless it relates to the validity or terms of the declarant’s will.” Fed. R. Evid. 803(3). The

reasons for this so-called “state of mind” exception “focus on the contemporaneity of the

statement and the unlikelihood of deliberate or conscious misrepresentation.” United States v.

Cardascia, 951 F.2d 474, 487 (2d Cir. 1991). “[U]nder Rule 803(3),” moreover, “hearsay

statements reflecting a declarant’s intentions or future plans are admissible to prove subsequent

acts.” United States v. DeJesus, 806 F.2d 31, 35 (2d Cir. 1986). The Second Circuit has made

clear that statements that meet the requirements of Rule 803(3) may be admitted without regard

to their apparent credibility or trustworthiness. See United States v. Cardascia, 951 F.2d at 487;

see also United States v. DiMaria, 727 F.2d 265, 271-72 (2d Cir. 1984). Declarations that fall

within the parameters of Rule 803(3) “are categorically admissible, even if they are self-serving

and made under circumstances which undermine their trustworthiness.” United States v. Lawal,

736 F.2d 5, 8 (2d Cir. 1984) (emphasis in original).

In prosecutions for extortion under color of official right, courts routinely admit out-of-

court statements reflecting the extorted party’s state of mind under Rule 803(3)’s hearsay

exception for state of mind evidence. “In order for a jury to find a defendant guilty of extortion

under color of official right, the government must prove beyond a reasonable doubt,” among

other things, “that the victims were motivated to make payments as a result of the defendant’s

control or influence.” United States v. McDonough, 56 F.3d 381, 388 (2d Cir. 1995); see also

United States v. Margiotta, 688 F.2d 108, 132-33 (2d Cir. 1982) (explaining that “a public

official may be guilty of obtaining money under color of official right if the [extorted party’s]

payments are motivated as a result of [the public official’s] exercise of the powers of his public

office and he is aware of this fact”), cert. denied, 461 U.S. 913 (1983). The relevance of the


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payor’s state of mind to proving a charge of extortion under color of official right consistently

has been recognized by other Circuits. See, e.g., United States v. McDonnell, 792 F.3d 478, 511-

12 (4th Cir. 2015) (“we have no difficulty recognizing that proof of a bribe payor’s subjective

belief in the recipient’s power or influence over a matter will support a conviction for extortion

under color of official right”); United States v. Fountain, 792 F.3d 310, 316-17 (3d Cir. 2015).

These legal principles have supported admission of out-of-court statements by

participants in an extortion scheme concerning their relevant states of mind. In United States v.

Biaggi, 705 F. Supp. 830, 841 (S.D.N.Y. 1988), for example, which involved, among other

things, the prosecution of former Congressman Mario Biaggi for extortion under color of official

right, the District Court admitted certain out-of-court statements of a participant in the extortion

scheme, in which the participant had promised to pay an associate of Biaggi’s $50,000. As the

court in Biaggi explained, the statements at issue reflected the participant’s “intent to pay the

$50,000,” and thus were admissible as reflecting the participant’s then-existing state of mind

under Rule 803(3). Biaggi, 705 F. Supp. at 841.

Similarly, in United States v. Kelly, 722 F.2d 873, 878 (1st Cir. 1983), a Massachusetts

state senator was convicted of extortion under color of official right for seeking money and other

items of value in exchange for awarding or continuing certain government contracts to other

participants in the extortion scheme. The district court permitted the Government to introduce

several out-of-court statements of the participants in the scheme, which showed their states of

mind when dealing with the senator. For example, one victim (Masiello) testified that another

victim asked him if he “thought that . . . Senator Kelly could, in fact, do the type of things that he

alluded to, such as having our contracts canceled in Massachusetts or if he could help us.” Id. at

877. Masiello further testified that he told another victim that Senator Kelly “posed a veiled


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threat that if we didn’t retain Billy as a member of Masiello & Associates and didn’t—and didn’t

continue to employ him, that there could be some problem—trouble with our contracts being

canceled.” Id. The district court explained that these statements were “admissible to show what

these people thought about why they were doing things or why they were going to do things,”

and the First Circuit found that the district court “did not err in admitting the testimony under the

state of mind exception to the hearsay rule.” Id. at 878. According to the court, extortion under

color of official right “requires as an essential element of proof the state of mind of the victim,”

and therefore the testimony at issue “bore directly on what ‘under color of official right’

encompasses: the ever-present opportunity of a public official to misuse his power under the

guise of official duty.” Id. See also United States v. Tuchow, 768 F.2d 855, 865-66 (7th Cir.

1985); United States v. Adcock, 558 F.2d 397, 401, 404 (8th Cir. 1977); Margiotta, 688 F.2d at

116-18, 136.

Most recently, the District Court in United States v. Sheldon Silver, S1 15 Cr. 093 (VEC),

admitted pursuant to Rule 803(3) certain communications from one of the participants in the

charged extortion scheme to a third party in which the participant expressed his view that Silver

would demand something of value in exchange for helping the third party locate a charity event

at a particular location. United States v. Sheldon Silver, S1 15 Cr. 093 (VEC), Transcript of

October 16, 2015 Pre-Trial Conference (“Silver Tr.”) at 83 (attached as Exhibit B). According to

the Court, the evidence of the participant’s state of mind was admissible not only to show the

declarant’s state of mind, but also “as circumstantial evidence that a relationship is a quid pro

quo relationship.” Id. Judge Caproni reasoned that, “if one of the persons in the relationship

believes that when he asks for a quid, he’s going to be asked in return for a quo… it’s direct

evidence about at least one party’s understanding of the relationship.” Id. The court also noted


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that such evidence was probative of the defendant’s own guilty state of mind because “[i]t is

unusual in terms of common sense and human nature that one person in a relationship believes

they are in a quid pro quo relationship and the other party does not.” Id.8

C. Discussion

The out-of-court statements listed above, and others to the same effect, are admissible

under Rule 803(3) because they bear directly on the state of mind of participants in the extortion

scheme at relevant points during the extortion and bribery offenses, and explain the participants’

motive and intent in continuing to pay Adam Skelos. As such, they constitute direct evidence of

the existence of the charged conspiracies to obtain quid pro quo agreements.

With respect to the Developer-1 State of Mind Evidence, statements by CW-1 and the

Developer-1 Lobbyist regarding their discomfort with Dean Skelos’s repeated requests for

payments to Adam Skelos, in light of the Senate Majority Leader’s power over Developer-1’s

business, go to the heart of CW-1’s motivation in ultimately deciding to direct payments to

Adam Skelos from the Environmental Technology Company and an unrelated title insurance

company. See United States v. McDonough, 56 F.3d at 388 (participant in scheme “motivated to

make payments as a result of the defendant’s control or influence”). Specifically, the

conversations show that when CW-1 caused Developer-1 to arrange the payments to Adam

Skelos, CW-1 did so because he understood that, if CW-1 did not do so, Dean Skelos would take

official action against Developer-1. This is precisely the alleged quid pro quo charged in the

Superseding Indictment with respect to Developer-1. The evidence is also strong circumstantial

8 In ruling for the admissibility of the statements under Rule 803(3), the Silver Court rejected the defendant’s argument that United States v. McDonough, 56 F.3d at 388, required the Government to show that, with respect to each piece of state-of-mind evidence proffered at trial, the participant’s state of mind was in fact communicated to the defendant in order for it to be relevant. Silver Tr. at 85-88.


22

evidence of the defendants’ own understanding that Developer-1 arranged for payments to Adam

Skelos based on Dean Skelos’s power to perform official actions for and against Developer-1.

See Silver Tr. at 83 (ruling that a victim’s state of mind is circumstantial evidence of the

defendant’s state of mind as to a quid pro quo relationship).

Similarly, the Malpractice Insurance Administrator State of Mind Evidence demonstrates

the CEO’s belief that, as a result of his discussion with Dean Skelos, he had to pay Adam Skelos

despite his non-performance at work in order to avoid adverse official action by Dean Skelos

against the company if the CEO ceased the payments to his son. The CEO’s admission to the

Executive that, as a result of a call from Dean Skelos, the CEO believed he could not terminate

Adam Skelos’s employment is direct evidence of the CEO’s state of mind at the time with

respect to the charged extortion scheme. See United States v. Kelly, 722 F.2d at 877. The

evidence is also circumstantial evidence of the defendants’ own understanding that the payments

to Adam Skelos were made as part of that same quid pro quo. See Silver Tr. at 83; United States

v. McDonough, 56 F.3d at 388. Accordingly, these statements are admissible under Rule 803(3).

III. CERTAIN STATEMENTS SHOULD BE ADMITTED TO SHOW THEIR EFFECT ON THE LISTENER

The Government seeks to admit certain statements to the CEO of the Malpractice

Insurance Administrator (a victim-participant in the defendants’ extortion and bribery schemes)

for a non-hearsay purpose – i.e., to show the effect of the statements on the listener. In

discussions with the Government, the defendants have taken the position that such evidence is

inadmissible hearsay, notwithstanding the fact that the proffered evidence – regardless of

whether or not true – is probative of the CEO’s understanding that he was engaged in a quid pro


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quo relationship with the defendants. The defendants’ arguments should be rejected, and the

Government should be permitted to elicit the requested statements at trial.9

A. Background

The Government seeks to introduce certain statements made to the CEO of the

Malpractice Insurance Administrator in order to show the effect those statements had on the

CEO’s state of mind (collectively, “Statements to the CEO”), including, but not limited to:

• In or about December 2013, a lobbyist for the Malpractice Insurance Administrator (the “Med Mal Lobbyist-2”) told the CEO that he should not hire Adam Skelos because the company had significant interests before the Senate Majority Leader, and hiring Adam Skelos could pose problems for the company. At the time the CEO heard these statements, he had already told Adam Skelos that he would employ him, and felt that he could not, given Dean Skelos’s position, renege on that offer. The CEO and the Med Mal Lobbyist-2 are expected to testify at trial.

• On or about January 10, 2013, the CEO spoke with Adam Skelos’s supervisor (identified as Supervisor-1 in the criminal complaint) as a result of a call from Dean Skelos to the CEO regarding Adam Skelos’s employment. During the conversation, Supervisor-1 relayed to the CEO that Adam Skelos had not shown up for work, despite having been hired for a full-time position, and stated that Adam Skelos had told Supervisor that he did not have to work the requisite number of hours because his father was the Senate Majority Leader. The CEO then relayed the substance of this conversation to Dean Skelos on the same day, but was told by Dean Skelos to continue employing Adam Skelos. Supervisor-1 is also expected to testify at trial.10

9 The defendants have informed the Government that they do not object to the admission of statements made to show their effect on the listener with respect to statements made to Dean Skelos, including: (1) the Malpractice Insurance Administrator CEO’s statements to Dean Skelos concerning the fact that Adam Skelos had not been showing up for work and had stated that he did not have to show up to work because his father was the Senate Majority Leader; (2) statements to Dean Skelos by a lobbyist working for the Malpractice Insurance Administrator (“Med Mal Lobbyist-1”) that Adam Skelos continued not to show up for work and warning Dean Skelos that such behavior was problematic for the parties; and (3) an email from an individual (“Individual-1”) telling Dean Skelos that Individual-1 had emailed a Nassau County official seeking confirmation that a county contract would be awarded to the Environmental Technology Company and telling Dean Skelos that Individual-1 was “careful of what I put in the email as you never know where it could wind up,” to which Dean Skelos responded “All happy.” 10 As stated above, the defendants have informed the Government that they do not object to testimony about the statements by the CEO to Dean Skelos recounting the CEO’s conversation with Supervisor-1. Herein, the Government is seeking a ruling that the direct conversation


24

• In or about February 2013, after learning that Adam Skelos was treating his full-time job

at the Malpractice Insurance Administrator as a “no show” job, the Med Mal Lobbyist-2 again discussed with the CEO the fact that Adam Skelos’s job with the company was problematic given the company’s lobbying relationship with Dean Skelos. At the time of this discussion, the CEO feared, based on the January 10, 2013 call with Dean Skelos, that he could not take adverse employment action against Adam Skelos.

B. Applicable Law

Out of court statements are admissible without resort to a hearsay exception where they

are offered for a purpose other than to “prove the truth of the matter asserted.” Fed. R. Evid.

801(c). Thus, “if the significance of an offered statement lies solely in the fact that it was made,

no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” United

States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (quoting Fed. R. Evid. 801(c) advisory

committee’s note). A statement is not hearsay if it is “offered to show its effect on the listener.”

Id. For instance, a statement introduced to show that the listener “was on notice of a danger” is

not hearsay. George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990).

In addition, statements can be independently admissible to provide context to a

defendant’s admissions during those same conversations. See, e.g., United States v. Dupre, 462

F.3d 131, 136–137 (2d Cir. 2006) (email messages sent by third parties to defendants were

admissible to provide context for email messages sent by defendants in response); United States

v. Sorrentino, 72 F.3d 294, 298 (2d Cir. 1995) (holding that recorded statements of a confidential

informant offered to render intelligible defendant’s recorded statements were not hearsay).

C. Discussion

The Statements to the CEO are admissible as non-hearsay in order to show the extortion

victim’s state of mind with respect to the continued payments to Adam Skelos despite Adam

between the CEO and Supervisor-1, which contains the same statements that the defendants concede are admissible when re-told by the CEO to Dean Skelos, is also admissible.


25

Skelos’s non-performance at work. In a case charging extortion under color of official right, the

government must prove beyond a reasonable doubt, among other things, “that the victims were

motivated to make payments as a result of the defendant’s control or influence.” United States v.

McDonough, 56 F.3d at 388. Accordingly, proving the victim’s state of mind at the time of the

extortion is not only relevant but necessary. With respect to the CEO, his state of mind is

evidenced both by statements he made to Dean Skelos (statements that, as noted above, are

admissible under Rule 803(3)), and by statements made to the CEO by others that informed his

own understanding and intent with respect to his participation in the extortion scheme. In this

context, statements by the Med Mal Lobbyist-2 to the CEO relaying the Med Mal Lobbyist-2’s

concerns both in hiring and continuing to employ Adam Skelos are relevant as direct evidence of

the CEO’s intent in continuing to pay Adam Skelos, despite Adam Skelos’s failure to show up

for work and his use of his father’s official position as justification for such non-performance. In

particular, the warnings given to the CEO concerning Adam Skelos’s employment are direct

evidence that the CEO continued to employ Adam Skelos due to Dean Skelos’s power and

influence over matters critical to the CEO’s business. See, e.g., United States v. Dupree, 706

F.3d at 136 (“[A] statement offered to show its effect on the listener is not hearsay.”) (citing

George v. Celotex Corp., 914 F.2d at 30 (“To be sure, an out of court statement offered not for

the truth of the matter asserted, but merely to show that the defendant was on notice of a danger,

is not hearsay.”)).

This evidence is also probative to rebut any suggestion that the CEO’s motives were not

related to the quid pro quo with Dean Skelos. The Government expects, based on defendants’

filings in this case and discussions with defense counsel, that the defendants will argue that the

CEO’s motive for hiring and continuing to pay Adam Skelos was not due to any fear of adverse


26

action by Dean Skelos, but rather because of friendship. Accordingly, evidence that the CEO

was told by the Med Mal Lobbyist-2 that the company’s continued employment of Adam Skelos

was legally problematic constitutes direct evidence that the CEO continued to employ Adam

Skelos because of the quip pro quo relationship with Dean Skelos. Celotex Corp., 914 F.2d at

30; see also United States v. Ferguson, 676 F.3d 260, 286 (2d Cir. 2011) (statement about risk of

regulatory scrutiny not hearsay because offered to show fact that statement was made to the

defendant); United States v. Ansaldi, 372 F.3d 118, 130 (2d Cir. 2004) (statements about effects

of controlled substance not hearsay because offered to show defendant’s state of mind).

Similarly, the statements by Supervisor-1 to the CEO that Adam Skelos was not showing up for

work are further proof of the CEO’s state of mind when he nevertheless continued to employ

Adam Skelos. These particular statements are also admissible because they explain why the

CEO then called Dean Skelos, who told the CEO to continue employing Adam Skelos regardless

of his reported work performance. See, e.g., Rolland v. Greiner, No. 02 Civ.8403 (GBD), 2006

WL 779501, at *3 (S.D.N.Y. Mar. 27, 2006) (“If a statement is offered for a purpose other than

proving the truth of the matter asserted, such as to explain actions taken as a result of the

statement or to show how an investigation developed, its admission violates neither the hearsay

rule nor the Confrontation Clause.”).

VI. THE GOVERNMENT SHOULD BE ALLOWED TO CROSS EXAMINE DEAN SKELOS, AND/OR ANY CHARACTER WITNESSES, WITH RELEVANT INSTANCES OF HIS CONDUCT

Should Dean Skelos seek to admit character evidence, through reputation or opinion

testimony, concerning his good moral character, the Government seeks permission, pursuant to

Rule 405(a) of the Federal Rules of Evidence, to cross-examine those witnesses with the

following specific instances of conduct. In addition, should Dean Skelos testify, the Government


27

seeks a ruling from the Court permitting it to cross-examine him regarding such conduct and, to

the extent Dean Skelos denies the conduct on direct examination, to introduce evidence to

contradict that testimony.

A. Background

Since in or about 1994, Dean Skelos has been employed as “Of Counsel” with a Long

Island law firm (the “Law Firm”), which was affiliated with a lobbying firm (“Lobbying Firm”).

During that time, Dean Skelos has been paid more than $2.6 million by the Law Firm. Dean

Skelos did not perform legal work for the Law Firm, but rather was compensated for referring

clients to the Law Firm and/or meeting with such clients (including clients with business before

the State). (See Complaint, at n.3). The Lobbying Firm, which was founded and managed by a

former New York State legislator who was also a partner at the Law Firm (“Founder-1”), lobbied

state legislators on behalf of its clients and operated essentially as a practice group within the

Law Firm. Among other things, the Lobbying Firm shared office space with the Law Firm, the

Lobbying Firm’s revenues were shared with the Law Firm, the Law Firm partners worked with

the Lobbying Firm to jointly develop business and serve overlapping clients. The Law Firm also

determined compensation for the Lobbying Firm employees.

Dean Skelos has made public statements and statements to his employees and colleagues

about the nature of his employment at the Law Firm that are inconsistent with these facts. For

example, after the arrest of Sheldon Silver, reports emerged that the United States Attorney’s

Office was investigating the outside employment of state legislators. Responding to questions

about the Law Firm and its relationship with the Lobbying Firm and Founder-1, Dean Skelos

stated, through a spokesperson, that “[t]here is a wall. [Dean Skelos] doesn’t have anything to

do with that. There is a total wall. They don’t discuss it.” In fact, there was no such wall – either


28

between Dean Skelos and Founder-1 or between Law Firm and Lobbying Firm matters. To take

just one example, on or about October 28, 2009, a law firm partner emailed Dean Skelos and

Founder-1 about “a client who owns interests [sic] several independent pharmacies in NYC” and

who “has expressed an interest in meeting with Dean” about issues which may include

“legislative issues relating to pharmacies.” Another partner “suggested to the client that it may

be beneficial to meet with [Founder-1] also,” and accordingly the email sought to coordinate a

meeting. Law Firm billing records confirm that Dean Skelos attended a meeting with that client

several weeks later. There are similar e-mails and other communications reflecting actual or

potential meetings between clients of the Lobbying Firm and/or the Law Firm with business

before the State and Dean Skelos.

B. Applicable Law

Where evidence of character is admitted by way of testimony as to reputation or opinion,

Rule 405(a) of the Federal Rules of Evidence permits cross-examination “into relevant specific

instances of conduct.” Fed. R. Evid. 405(a). “Once a defendant offers character testimony, the

prosecution is afforded substantial latitude to rebut such evidence.” United States v. Russo, 110

F.3d 948, 952 (2d Cir. 1997). In doing so, the prosecution may not pose “guilt-assuming”

hypothetical questions. See id. As with any type of cross-examination, “[t]he scope and extent

of cross-examination lies within the discretion of the trial judge.” United States v. Blanco, 861

F.2d 773, 781 (2d Cir. 1988). The trial court may, in its discretion, preclude questions for which

the questioner cannot show a good-faith basis. United States v. Figueroa, 548 F.3d 222, 227 (2d

Cir. 2008). In cross-examining a character witness, the Government need not offer extrinsic

evidence so long as it can point to a good-faith basis for its questions. See United States v.

Payton, 159 F.3d 49, 58-59 (2d Cir. 1998).


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Specific acts of a witness’s conduct may be inquired into on cross-examination “if they

are probative of the character for truthfulness or untruthfulness of . . . the witness.” Fed. R. Evid.

608(b)(1). “When a defendant offers an exculpatory explanation for the government’s evidence,

he ‘opens the door’ to impeachment of his credibility, even by previously inadmissible

evidence.” United States v. Desposito, 704 F.3d 221, 233-34 (2d Cir. 2013). Although the

introduction of extrinsic evidence is not allowed to follow up on the inquiry under Rule 608(b),

that rule does not govern impeachment of a witness with respect to specific falsehoods. United

States v. Beverly, 5 F.3d 633, 639-40 (2d Cir. 1993). Thus, “[w]here a defendant testifies on

direct about a specific fact, the prosecution is entitled to prove on cross-examination that he lied

as to that fact,” and may do so using “evidence that it was barred from using on its direct case.”

Id.; see also United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010) (stating that the doctrine

set forth in Beverly “provides that when a witness puts certain facts at issue in his testimony, the

government may seek to rebut those facts, including by resorting to extrinsic evidence if

necessary”).

C. Discussion In the event that the defendants call witnesses to testify to the good character or

reputation of defendant Dean Skelos, the Government should be permitted to cross-examine

those character witnesses with questions regarding the nature of Dean Skelos’s employment with

the Law Firm. The same is true if the defendant should seek to introduce character testimony

through any Government witness on cross-examination. This is particularly true should the

defendant seek to establish character evidence relating to the defendant’s alleged integrity, ethics

or alleged separation of personal/family outside income from his official position as a State

Senator and Majority Leader. To offer such testimony a character witness “must qualify to give


30

an opinion by showing such acquaintance with the defendant, the community in which he has

lived and the circles in which he has moved, as to speak with authority of the terms in which

generally he is regarded.” Michelson v. United States, 335 U.S. 469, 478 (1948); accord United

States v. Perry, 643 F.2d 38, 52 (2d Cir. 1981). When reputation testimony is offered, “the

prosecution has a right to test the qualifications of the witness to bespeak the community

opinion.” Michelson v. United States, 335 U.S. at 478. Knowledge about the nature of how

Dean Skelos obtains his primary source of income is clearly relevant to a witness’s ability to

opine on Dean Skelos’s good character or on his reputation in the community. See, e.g., United

States v. Reich, 479 F.3d 179, 190–91 (2d Cir. 2007) (inquiry about defendant’s actions in

violation of law firm partnership agreement was proper cross-examination of reputation and

opinion witness). And the fact that Dean Skelos has made public statements regarding his

employment that are inconsistent with the true nature of that employment is certainly something

which, if known to the witness, would tend to bear on the witness’s own opinion of Dean

Skelos’s good character and the witness’s basis for speaking to Dean Skelos’s reputation in the

community.

In the event Dean Skelos testifies, inquiry into the nature of his employment at the Law

Firm and the truthfulness of his public statements and statements to others on the topic should be

permitted because such inquiry goes directly to Dean Skelos’s character for truthfulness.

Evidence of prior false statements is quintessential impeachment material. See, e.g., United

States v. Jones, 900 F.2d 512, 521 (2d Cir. 1990). That evidence is particularly probative where,

as here, the statements obscure conduct which is similar to the charged conduct: Dean Skelos’s

use of his official position to obtain financial benefits by assisting entities with business before

the State. Cf. Inserra, 34 F.3d at 89 (evidence of prior bad act sufficiently similar to allow jury


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CONCLUSION

For the reasons set forth above, the Government respectfully requests that the Court grant

the Government’s in limine motions.

Dated: October 23, 2015 New York, New York

Respectfully submitted,

PREET BHARARA United States Attorney

By: /s/ Jason A. Masimore/Rahul Mukhi/ Tatiana R. Martins/Thomas A. McKay Assistant United States Attorneys


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

----------------------------x : UNITED STATES OF AMERICA : : v. : 15 Cr. 317 (KMW) : DEAN SKELOS and : ADAM SKELOS, : : Defendants. : : ----------------------------X

Recorded Calls

ADAM hone

Call Date: December 22, 2014 Call Time: 13:57:54 Session Number: 1081 Participants:

Audio File Name: VZW 2014-12-22 13-57-54 01081-001.wav

Case 1:15-cr-00317-KMW Document 54-1 Filed 10/26/15 Page 1 of 8

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RECORDING: Welcome. of -- please

hold a moment.

(Phone ringing)

May I help you? Good

afternoon. Dimitri speaking.

A. SKELOS: Hello, This is Adam Skelos.

Hello. How are you?

A. SKELOS: I'm good. How are you?

I'm okay.

A. SKELOS: I missed your call.

I'm sorry?

A. SKELOS: I had a call on my phone saying it

was your number. Were you trying to reach me?

Who is this?

A. SKELOS: It's Adam Skelos.

No, I did not. I didn't call you today

because today's Christmas. I cannot call you. I told you

I'm going to have to call you after, after, after the

holidays, not today. I didn't call you today.

A. SKELOS: I tell you what,

Yes, sir?

A. SKELOS: Every time you call me, you see my

father's name in the paper, right?

No.

A. SKELOS: If you want, you want to start doing


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some work together, you're going to have to call me a

little more frequently; otherwise, don't call me at all.

Okay? What I wanted to set up with you was something that

would have helped you more than me. Do you understand

that?

I am trying to. But I don't know why,

why you -- I didn't call you, though. I didn't, I didn't

call you.

A. SKELOS: I have it on my -- I have a missed

call on my phone says Dimitri Pan Gregorian. Okay? That's

number one. But, see, if you were going to set this

meeting up, you would have done it a while ago. You've

done nothing. Okay?

I don't understand you are saying.

A. SKELOS: Now, do you want to have --

You have an --

A. SKELOS: -- do you want to have the meeting or

no?

You have an, you have an attitude --

A. SKELOS: Because I'll tell you one thing.

Yes.

A. SKELOS: A lot of people don't have my

cellphone number, okay? I don't give my cellphone number

out to everybody.

Yes.


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A. SKELOS: You have my cellphone number. Now

I'm getting missed calls and this and that. It's a

privilege to have that number. Now, if you want to utilize

my fucking reach and business opportunity, then you call me

and I'll set up a meeting. Otherwise, don't tell me you're

going to set up a meeting and not set it up. Okay?

Because you bullshit --

(Indiscernible)

A. SKELOS: -- like every other Greek business

person. Oh, we do very good, very good things; we do it --

but you don't do a fucking thing. Okay? That's why you

are where you are and I am where I am. Okay?

What -- now --

A. SKELOS: Now, if you want to set something

up --

-- where, where, where --

A. SKELOS: -- if you want to set something up --

-- where are you?

A. SKELOS: -- you let me know.

Where are you?

A. SKELOS: I'm doing very well, Dimitri. I'm

doing really well.

Okay.

A. SKELOS: And I could -- I can make you do very

well too if you --


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I didn't say that.

A. SKELOS: Do you think I'm limited to, to, to

gas? Is that it?

I didn't say that. I didn't say that.

A. SKELOS: Okay.

But you know, you know I'm -- we have --

A. SKELOS: Okay.

-- in this place over --

A. SKELOS: Right.

-- 4,000 members, 4,000.

A. SKELOS: 4,000. I do the, I do the Nassau

Police PBA. They have over 45,000 members, okay?

Yes, I know.

A. SKELOS: So (indiscernible)

No, I see. But I'm telling you what I

do.

A. SKELOS: But I promise you this. It is more

than just gas. There are more commodities than --

But you don't let me finish. Let me

finish.

A. SKELOS: No, no, no.

I am telling you this that I --

A. SKELOS: I am telling you I am finished. I am

finished.

You're finished?


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A. SKELOS: You had an opportunity.

Yes.

A. SKELOS: Now it's done. It's done.

I have an opportunity for what?

A. SKELOS: You had an opportunity to work with

someone who could get a lot of things done for you, but now

it's done.

Like what?

A. SKELOS: It's done. I'm not going to go

there. I'm not going to say this on the phone. You could

have heard those opportunities in person, but you wanted to

not do that. For some reason, you thought you were more

important and more powerful because you have a few members

that, that have diners. Okay. Who gives a shit about

diners? But that's fine. You do you --

You're upset.

A. SKELOS: -- I'll do me.

You're upset, aren't you?

A. SKELOS: You, you do you with your life, I'll

do me, and we'll both go our separate ways.

You're upset, all right? You're upset,

all right?

A. SKELOS: No, I'm not upset. I don't get upset

by you -- by people that are (indiscernible)

Well, but your voice, it's very


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disturbed, so it must -- something happened.

A. SKELOS: I can't -- it's very frustrating

talking to somebody if they can barely understand what you

say. Okay?

Barely --

A. SKELOS: I gave you an opportunity.

Barely understand?

A. SKELOS: I gave you an opportunity and you --

You said barely understand?

A. SKELOS: -- you squandered that opportunity.

You squandered it.

You said barely understand? Is that

what you're saying?

A. SKELOS: Barely, barely. Barely means less

than able to. Listen, Dimitri, you have --

Yes.

A. SKELOS: -- a nice life. You can lose my

number, though, okay?

Of course not.

A. SKELOS: Okay, very good.

(End of call)


Court Conference 10 16 2015.txt1

FAGYSILC1 UNITED STATES DISTRICT COURT1 SOUTHERN DISTRICT OF NEW YORK2 ------------------------------x23 UNITED STATES OF AMERICA,34 v. 15 CR. 0093 (VEC)45 SHELDON SILVER,56 Defendant.67 ------------------------------x78 New York, N.Y.8 October 16, 20159 2:30 p.m.91010 Before:1111 HON. VALERIE E. CAPRONI,1212 District Judge131314 APPEARANCES1415 PREET BHARARA15 United States Attorney for the16 Southern District of New York16 CARRIE COHEN17 HOWARD S. MASTER17 ANDREW DANIEL GOLDSTEIN18 JAMES M. MC DONALD18 Assistant United States Attorney1919 STROOCK & STROOCK & LAVAN LLP20 Attorneys for Defendant20 BY: JOEL COHEN2121 MOLOLAMKEN, LLP22 BY: JUSTIN VAUN SHUR22 STEVEN FRANCIS MOLO23 ROBERT KELSEY KRY232425

SOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300

2

1 (Case called)2 THE COURT: Good afternoon. Please be seated.3 The order that we're going to go in today is we're4 going to start with the motions in limine. Then we're going to5 talk about the defendant's that I received this morning or last6 night, one or other, a request for a witness list, among other7 things. Then we'll take up the sealed motion in limine.8 Gentlemen of the press, heads up. You'll be excluded9 for that when I make findings on the record.

Page 1


Court Conference 10 16 2015.txt16 statements, not actual statements. That's not enough17 information to be included with the rest of the issue.18 THE COURT: What can you tell me?19 MR. GOLDBERG: I think, your Honor, that number one,20 we could endeavor to be more specific, to the extent that the21 defense needs it. Some of these are issues where we thought it22 was important in this motion to lay out the law for the Court23 on state of mind evidence so that when these issues come up at24 trial, that there's a background, in terms of the briefing.25 To the extent that there is a statement that we intend


81

1 to elicit as we get to a particular witness, that we could flag2 that for the Court in advance of that witness's testimony.3 It could be addressed in the specifics then as opposed4 to potentially at the time that we filed this when we were5 beginning to put our proof together.6 THE COURT: You're now two weeks before trial. So I7 presume your proof is more together.8 MR. GOLDBERG: It is, your Honor.9 THE COURT: It's not entirely together. Can you flesh10 out, I think, particularly the information that you want11 relative to Glenwood. Because I would prefer not to be ruling12 on that in trial.13 I presume you would want to know for purposes of prep14 and they want to know for purposes of cross whether it's coming15 in or not. So flesh that out.16 MR. GOLDBERG: We can do that, your Honor.17 THE COURT: I think also the information about the18 doctor disproving of Weitz & Luxenberg and the contributions --19 if you could please flesh that out including is it documents,20 is it testimony, etc. That would be useful.21 MR. GOLDBERG: We will, your Honor.22 THE COURT: That's due on Monday. Your response is23 due Tuesday. We'll talk about it Wednesday.24 MR. GOLDBERG: Thank you, your Honor.25 THE COURT: Miles for Meso.


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1 MR. KRY: Right. On the two documents that are2 actually identified, your Honor, the point here, as you alluded3 to back in the beginning of the hearing on campaign4 contributions, at the end of the day, it's Mr. Silver's mental5 state that counts, not the alleged victims that the government6 is pointing to here.7 Then the law for extortion. They claim that it's the8 victim's mental state that counts, not quite. The standard for9 McDonough is that "The government must prove beyond a10 reasonable doubt that the victims were motivated to make11 payments as a result of the defendant's control or influence12 over public officials and that the defendant was aware of this13 motivation."14 So a third party's undisclosed subjective speculation15 about whether it will cost me if he does something, absent any16 evidence actually tying that motivation to Mr. Silver and17 showing that Mr. Silver was somehow aware of that motivation,18 which is what the McDonough requires -- that evidence just19 isn't relevant.20 So this is another topic where they have a basic

Page 38


Court Conference 10 16 2015.txt21 foundation problem. They want to get in third parties' states22 of mind, but that evidence is only relevant if they can tie23 that to the defendant's awareness of that state of mind.24 It's improper and very prejudicial to allow them to25 put in that third party's state of mind and then just let the


83

1 jury speculate about whether the defendant knew that or not.2 There's an inherent risk with this type of evidence,3 your Honor, that the jury is going to assume that if Mr. Taub4 wrote an email saying, well, this is going to cost me, then5 whatever that says about Dr. Taub's speculation, a jury is6 going to be mislead into thinking that Mr. Silver must have had7 the same understanding of the relationship, and that's just not8 the law.9 THE COURT: It seems to me that it is circumstantial10 evidence that a relationship is a quid pro quo relationship if11 one of the persons in the relationship believes that when he12 asks for a quid, he's going to be asked in return for a quo.13 That is circumstantial evidence of what's in his state14 of mind because it's direct evidence about at least one party's15 understanding of the relationship. It is unusual in terms of16 common sense and human nature that one person in a relationship17 believes they are in a quid pro quo relationship and the other18 party does not.19 MR. KRY: The element under the law though,20 your Honor, is that it's not just his -- the third party's21 mental state that matters. It's the third party's mental state22 that the defendant was aware of.23 THE COURT: Right.24 MR. KRY: So I don't think it's circumstantial25 evidence, direct evidence, any kind of evidence.


84

1 THE COURT: But it is circumstantial evidence that the2 relationship was a quid pro quo relationship, which is part of3 what they have to prove, that it was a quid pro quo4 relationship.5 MR. KRY: One party's speculation, unless there is6 some actual basis for the speculation and some reason.7 THE COURT: He's going to testify for days I suspect8 about why he believed this was a quid pro quo relationship.9 Taub is a witness.10 MR. KRY: Yes. If the government had that evidence,11 presumably they would have told us what that is. If there's12 evidence where this Miles for Meso email was sent on to13 Mr. Silver --14 THE COURT: No, no, no. They don't have to have that.15 They're going to have testimony that it was a quid pro quo16 relationship; that Taub referred patients and Silver gave17 money.18 That's what Taub is going to testify to; right?19 MS. COHEN: That's correct, your Honor, and other20 benefits.21 THE COURT: And other benefits. That establishes the22 fact that it was a quid pro quo relationship, and Taub's email23 is further evidence that not just on the stand but three years24 or four years or whenever it was ago, he was saying, this is a25 quid pro quo relationship. Every piece of evidence doesn't

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Court Conference 10 16 2015.txtSOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-030085

1 have to prove every fact that they have to prove.2 MR. KRY: And I don't disagree with that, your Honor.3 But every piece of evidence does have to be relevant to the4 case. Under McDonough, a third party speculation just isn't5 relevant.6 There are any number of reasons why Taub could have7 said that. He could have been promoting himself to the person8 he was corresponding with.9 There are any number of reasons why Dr. Taub may have10 had that perception of the relationship. Absent some evidence11 actually tying that knowledge to Mr. Silver, under McDonough,12 the Second Circuit standard is totally clear that that's not13 relevant.14 It's not a situation where you have different elements15 of the crime and the government can prove them one at a time.16 You have an element of the crime that under binding Second17 Circuit law just isn't relevant to the case unless the18 defendant is aware of it.19 THE COURT: You're making it sound like he has to be20 aware that Dr. Taub thought that, as to Miles for Meso, he was21 going to ask for something in return.22 MR. KRY: I think that's fair, your Honor. If they're23 putting in this Miles for Meso email to show that Dr. Taub24 believed it was going to cost him, they can only put that in if25 there's some evidentiary basis that Mr. Silver knew that


86

1 Dr. Taub thought it was going to cost him, because absent that2 connection, this is pure speculation.3 It's one third party's subjective belief of the4 situation. There's no basis for tying this in to Mr. Silver.5 As we said in the brief, Mr. Silver can't be convicted because6 of somebody else's guilty conscience.7 THE COURT: That is absolutely correct.8 MR. KRY: If we accept that premise, I think we are9 quite far on the way to excluding this evidence because that is10 what it goes to.11 THE COURT: I completely disagree. The fact that he12 believes -- and the evidence is compelling evidence that he13 understood this to be a quid pro quo relationship.14 Assuming they can otherwise prove that there was a15 quid pro quo relationship, then whether Mr. Silver knew that as16 to this particular act Mr. Taub was saying this is going to17 cost me, is neither here nor there.18 MR. KRY: Absent evidence tying the Miles for Meso19 emails to Mr. Silver, I don't know how you would know that20 those were part of any quid pro quo relationships.21 THE COURT: That's what Taub is going to testify.22 MR. KRY: If Dr. Taub testifies that Mr. Silver had23 some reason to be aware of the motivation for thinking this is24 going to cost me?25 THE COURT: No. You're tying this evidence up in a


87

1 way, one, that it is not how people operate, certainly not howPage 40


Court Conference 10 16 2015.txt2 quid pro quo relationships operate. That's not what the law3 is. It's circumstantial evidence that the men had a quid pro4 quo relationship.5 So, when he asked for something, he was asking for6 him, for the defendant, to act in his official capacity, to7 help him out on things. He totally understood that he would do8 it, but it would cost me, because it's a quid pro quo9 relationship.10 MR. KRY: I don't think it makes sense to define quid11 pro quo relationships in the abstract. If the theory is that12 there was a quid pro quo relationship with respect to Miles for13 Meso, then they need to show that there was not only a14 subjective belief by Dr. Taub that this was going to cost him15 but that somehow Mr. Silver was aware of that motivation.16 That's what McDonough says. That's the government's17 case. We all agree that's what the standard is. If they want18 to try and put on evidence of some other transactions which19 they say are quid pro quos that somehow justifies letting in20 these completely different set of emails about Miles for Meso21 just because Dr. Taub had an email. Absence of evidence that22 Mr. Silver was aware of Dr. Taub's understanding and23 subjective, undisclosed perception of what he was doing here --24 this evidence just isn't relevant under McDonough, and it's25 also highly prejudicial.


88

1 THE COURT: I disagree with your reading of McDonough.2 So that email is admissible. We need more on this one before3 we can resolve the other elements of it.4 We've talked about what I have as number 7, which is5 the use of letterheads for real estate taxes. I think the6 motion relative to the Hofstra Law School opinion is moot?7 MS. COHEN: Your Honor, I haven't been given expert8 disclosure. So I'm not sure.9 THE COURT: So you think they might be wanting to call10 some other expert to testify to the same thing?11 MS. COHEN: You had asked them to notify us by today,12 and they have not done so.13 THE COURT: I presume that means they don't have any14 experts.15 MR. MOLO: Actually, Judge, you didn't ask us to16 notify them by today.17 THE COURT: As soon as possible I think.18 MR. MOLO: Exactly. We've written them telling them19 that by the time of the pretrial conference, we intend -- it's20 our intention now -- to give them expert disclosure.21 THE COURT: Are you going to try to put on a witness22 who is going to testify about whether Weitz & Luxenberg's23 arrangement was ethical?24 MR. MOLO: At this point in time, that is not my25 intention.


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1 THE COURT: Good. Let me know if that changes because2 I do not believe I would admit it.3 You want to put in 40-year-old conduct of Dr. I.4 MR. MOLO: Not exactly. My partner, Mr. Shur.5 MR. SHUR: Good afternoon, Judge. I believe it's the6 government's motion, but I'm happy to address it.

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